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BronzeLady, Old Man or anyone - Extension of B2 to allow for AOS?

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  • BronzeLady, Old Man or anyone - Extension of B2 to allow for AOS?

    My daughter has been in the USA on a vistor visa which is due to expire at the end of this month. She came here on vacation, and while she was here my mother was diagnosed with terminal cancer. She obtained an extension to allow her to nurse my mother, so she would be able to stay in her own home until the end. My mother passed away a few months ago.
    During this period, the I-130 petition filed for my daughter by my husband in 1998, was approved. I have become a US citizen and my husband finally had his interview several months after me. His file had been "mislaid". He has been told verbally that he will receive notice of his oath ceremony within the next 21 days.
    My daughter is eligible to adjust status to a PR immediately he becomes a citizen, but it is now obvious that won't be within the next 10 days, after which her visitor visa will expire. Our only option is to immediately file for another extension. (It shouldn't be more than a month or so from now that she will be able to make the adjustment of status application.)
    My questions:
    By filing for an extension, will she remain "in status"?
    If the reason for her request for an extension, is the fact that she will soon be able to adjust status to that of a PR, will the USCIS deny the extension?
    What should we say in the cover letter?
    All advise will be gratefully received!

  • #2
    My daughter has been in the USA on a vistor visa which is due to expire at the end of this month. She came here on vacation, and while she was here my mother was diagnosed with terminal cancer. She obtained an extension to allow her to nurse my mother, so she would be able to stay in her own home until the end. My mother passed away a few months ago.
    During this period, the I-130 petition filed for my daughter by my husband in 1998, was approved. I have become a US citizen and my husband finally had his interview several months after me. His file had been "mislaid". He has been told verbally that he will receive notice of his oath ceremony within the next 21 days.
    My daughter is eligible to adjust status to a PR immediately he becomes a citizen, but it is now obvious that won't be within the next 10 days, after which her visitor visa will expire. Our only option is to immediately file for another extension. (It shouldn't be more than a month or so from now that she will be able to make the adjustment of status application.)
    My questions:
    By filing for an extension, will she remain "in status"?
    If the reason for her request for an extension, is the fact that she will soon be able to adjust status to that of a PR, will the USCIS deny the extension?
    What should we say in the cover letter?
    All advise will be gratefully received!

    Comment


    • #3
      Any suggestions? I need to file this application today if possible.

      Comment


      • #4
        File for an extension. Just waiting for the receipt notice may give her time for your husband to naturalize. For the extension to have any chance of being approved, it must be for a valid nonimmigrant purpose.

        To which country and class is her visa chargeable?

        Comment


        • #5
          I don't have an exact answer for you but just remember one thing...

          Filing an AOS, even if you have become illegal (perhaps your daughter in this case), is possible IF YOU ENTERED THE COUNTRY LEGALLY. So even if she 'overstays' as long as you get the AOS filed sometime soon - she SHOULD be OK (my opinion only - get legal advice).

          You cannot file an AOS if she came in illegally. But this is not the case here. So, in my humble opinion, I would file the extension and then file an AOS as soon as you are able...

          I would also give you this advice - get out your yellow pages and make a few cold calls to some imm. lawyers. Most of them will give you a free 5 or 10 minute consultation over the phone. Although this is only mildly helpful, by talking to three or four lawyers, you will have a much better understanding of your options. Just be organized and specific about what your questions are...

          Good luck...

          ARQU

          Comment


          • #6
            Thank you both. The visa is chargeable to South Africa, but she has been living in Ireland for the past 3 years - a complication if she has to process through the S A Consulate. She was approved as the unmarried child 21/older of a permanent resident - F-2B I think. She will upgrade to child of a citizen - with a priority date of May 1998. I believe that date is now current. She was originally included on my husband's I-140 filed in 1996, but aged out.

            Old Man, I'll take your advice and hope for the best. We've prepared the application and I'll send it off today. We've had a lot of bad luck over the last 8 years - hopefully this at least will work out.

            Comment


            • #7
              She has a few years to wait for the F2B, but F1 visas are available up to October 2000. So she will be OK for adjustment after her father naturalizes if she is in status. She is in a preference category so she doesn't get all the waivers immediate relatives do.

              Comment


              • #8
                Bear in mind that if the I-539 is denied then she is out of status since the date the last extension expired. If she is over 21 she still needs to be in status at the time of filing for the I-485 but with a legal entry she will just have to pay the penalty fee for 245(i) of $1000 since she has a perition filed prior to 4/30/01.

                Comment


                • #9
                  Thank you BronzeLady. It is ironic that I am now a citizen, but it doesn't help my daughter. I remember you telling me in a post several months ago that my husband's interview probably wouldn't be more than 2 months after mine. It turned out to be far more than that, presumably because his file was mislaid. We were fortunate that a very helpful officer in the local office investigated and set up a temporary file for him on the day I went for the oath ceremony. This enabled him to have his interview, and they have now located his original file. We are hoping that he will receive notification of his oath very soon. (It is almost 2 months since his interview.) We will prepare the application for my daughter's adjustment of status and file it on the same day as his oath. I hope that the fact that she has filed for an extension means she will still be in status at the time the AOS is filed? Going by the average processing times, she won't get a decision on the I-539 for several months.

                  I didn't know about the $1000 penalty fee, but seeing as how this whole immigration process has almost bankrupted us over the past several years - what's another $1000 on the equity line!

                  Comment


                  • #10
                    To benefit under the LIFE Act, she also had to be in the US prior to Dec 21, 2000 if the petition was filed after January 14, 1998.

                    Comment


                    • #11
                      BronzelLady, Old Man or anyone:

                      My wife's brother an LPR file I-130 for his three Children prior to Dec.21, 2000.
                      Children are in US since 1995.
                      How this three children can be benefited under the Life Act. Any help please. Thank you.

                      Comment


                      • #12
                        There number isn't even current yet they have to wait. Your brother-in-law may be able to file for a V-visa for them but without all the specifics it is hard to say.

                        Comment


                        • #13
                          BronzeLady, as a matter of interest, do you advise both parents to file I-130's for for their children? In our case, I have obtained my citizenship, but my husband's has been delayed for some obscure reason. If we had both filed an I-130 petition 7 years ago, our daughter could have adjusted status when I got my citizenship. Instead, she is waiting on my husband's oath and we now have the added expense and uncertainty of filing for an extension of her visitor visa.

                          Of course, double filing of the I-130 also means double expense at that time and double the paperwork for the USCIS, and no doubt would extend waiting times ever further. So what is the solution?

                          Comment


                          • #14
                            Fairplay, for natural children where both parents are green card holders I would urge that. Although, I wonder why the child didn't get a green card through a derivative category in the first place. That would have eliminated this whole thing.

                            Comment


                            • #15
                              BronzeLady, in our case, our children were under 21 and included on my husband's I-140 petition which was filed in early 1997 while he was employed in the US on a work visa. We had actually paid the lawyer "upfront" and had completed all the paperwork almost 3 months prior to the lawyer filing the petition. We were under the impression that it had been filed at the beginning of Nov. 96. Largely due to this delay (which our lawyer said was due to his "staff problems") our children aged out 3 months before the I-140 was approved. We learned a hard and very expensive lesson, and since then I have prepared and filed all subsequent applications/petitions myself.

                              Once we obtained our Permanent Residence (1998)my husband filed I-130's for our children. And then the wait began! Because we wanted to do everything the correct and legal way, our children (twins) returned to our home country once they turned 21 and "aged out". From what I understand, if they had stayed here illegally they would have qualified for the Life Act and would by now be able to live and work here legally. WHERE IS THE JUSTICE? No wonder there are so many illegal immigrants!

                              Comment



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