Problems in applying green card for US citizen's parent who is currently visiting US

[Elaine2007]

I'm a US citizen and am applying green card for my mother. We currently live in California. My mother's citizenship is China. She got her multi-entry B1/B2 visa July 2006 in China, and she visited us here in USA from Oct 2006 to February 2007, and she entered US again with the same visa on June 20th 2007. I filed I-130 and I-485 for her On July 2nd, 2007. She got the notice and had her fingerprint done on Aug. Both my husband and myself accompany her to local INS for the scheduled I-485 interview in September. The officer interviewed us said he will deny our case as we submit our application shortly after she arrives here. We explained to him that her visa was granted last July and she has been here with the same visa for more than 4 months last time she visited here. But the officer said he understood our situation, but he has to deny our case due to case law (not sure what the law he is referring to). He give us two options. One is to withdraw our application and then maybe apply for the green card for my mother while she is back in China, and he said if we resubmit the application in US later after the withdraw, it is very likely to get denied again. The other options is that he denies our application. He give us 1 week time to decide which option we choose. Applying green card for parent in China is a very time consuming process. Is there a way to apply for her green card here again in US?

Any suggestions?

Thanks!

[Theone]

When she entered the US what did she say was the purpose of her visit?

[Rough Neighbor]

Originally posted by Theone:
When she entered the US what did she say was the purpose of her visit?

It could have been OK had they done the filing beyond the 60-day rule away from the day of entry on a tourist visa. It's the "dual intent" concept that they have run afoul into. If I were in the same situation, I would request for a "denial without prejudice" and refile everything after, say, six months. It may or may not swim through but not much choices are there (consular process is one) after committing a fatal mistake, due to absence of any legal advice I presume.

[Elaine2007]

Her visa was granted as B1/B2, so the purpose was for visiting daughter. we know many people, whose parents got green card approved here in US and their parents entered US with the same B1/B2 visas as my mother. The issue the officer challenged us is that we applied shortly after she arrived US, and it would be fine if we submit her application 2 month after she arrived US. I really don't understand why these two months makeing big difference, as we are always advised to submit application ASAP.

Thanks!

[Elaine2007]

Originally posted by Rough Neighbor:
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Theone:
When she entered the US what did she say was the purpose of her visit?

It could have been OK had they done the filing beyond the 60-day rule away from the day of entry on a tourist visa. It's the "dual intent" concept that they have run afoul into. If I were in the same situation, I would request for a "denial without prejudice" and refile everything after, say, six months. It may or may not swim through but not much choices are there (consular process is one) after committing a fatal mistake, due to absence of any legal advice I presume. </div></BLOCKQUOTE>

How can we request "denial without prejudice". As you have pointed out we didn't know the 60 days rule and we didn't seek legal advice as we thought it is a pretty straightforward process.

Thanks!

[Rough Neighbor]

Hi Elaine: Aside from what I said above, your other option is to withdraw your mother's I-485 application and request the officer to forward the I-130 that you filed for your mother to the NVC and then after you complied with the subsequent requirements later, NVC will forward the paperwork to the US Embassy in China. Believe me, the timeline for all this will be less than a year and your mother will join you back here in the US as an immigrant. You don't have much choice as of now because you have violated the 60-day rule after your mother's arrival on a tourist visa. You filed her AOS application only after 12 days from her entry date.

[Rough Neighbor]

Originally posted by Elaine2007:
How can we request "denial without prejudice". As you have pointed out we didn't know the 60 days rule and we didn't seek legal advice as we thought it is a pretty straightforward process.

Thanks!

Well, simply because you cannot expect an approval because the officer will be in trouble himself if he does so in clear violation of the regulations.

[Elaine2007]

Originally posted by Rough Neighbor:
Hi Elaine: Aside from what I said above, your other option is to withdraw your mother's I-485 application and request the officer to forward the I-130 that you filed for your mother to the NVC and then after you complied with the subsequent requirements later, NVC will forward the paperwork to the US Embassy in China. Believe me, the timeline for all this will be less than a year and your mother will join you back here in the US as an immigrant. You don't have much choice as of now because you have violated the 60-day rule after your mother's arrival on a tourist visa. You filed her AOS application only after 12 days from her entry date.

Thanks for your advice. Here is my question: we violated the 60 days rule we did not know at all, but my mom really did NOT have the intent to file for green card WHEN she entered US evidenced by 1) my daddy is in China, and she came here alone 2) all her supporting document like birth certificate from China were gathered AFTER she came to America. The reason we decided to go ahead with green card process is that she was complaining her experiences the first day here that she was questioned extensively by immigration officer upon entering US most recently. Would this be considered favorably if we decide to refile the application?

[Rough Neighbor]

Because you didn't know the rule, sorry, doesn't excuse you from the consequences of the violation, you know that, right?. Now, how could you convince the USCIS that she "doesn't have the intention" to immigrate when you have filed her paperwork for that purpose? Please put yourself in the shoes of the officer and you're confronted with the same case as your mother's, what would you do?

And the reason why she was questioned on her return was because of the very short gap between her departure in February and her return in June. You know, the CBP is suspecting that she is coming here not "plainly" for a pleasure trip.

[Young Man]

Elaine2007 What I understood from your post is that your mother only wants to become an LPR just to avoid questioning.
QUOTE/
The reason we decided to go ahead with green card process is that she was complaining her experiences the first day here that she was questioned extensively by immigration officer upon entering US most recently.QUOTE/

Well in my opinion, if she does not want to live in the US permanently then please do not try to obtain an Immigrant Visa. Instead the best choice is a B1/B2 which she already has.
Maintaining an LPR status is very difficult if one wants to use his/her GC as a non-immigrant visa.

[Elaine2007]

Originally posted by Young Man:
Elaine2007 What I understood from your post is that your mother only wants to become an LPR just to avoid questioning.
QUOTE/
The reason we decided to go ahead with green card process is that she was complaining her experiences the first day here that she was questioned extensively by immigration officer upon entering US most recently.QUOTE/

Well in my opinion, if she does not want to live in the US permanently then please do not try to obtain an Immigrant Visa. Instead the best choice is a B1/B2 which she already has.
Maintaining an LPR status is very difficult if one wants to use his/her GC as a non-immigrant visa.

Young, thanks for your reply. My earlier comments is to explain that my mother didn't have the intention to obtain the Immigrant Visa when she entered US on June 20th with B1/B2. But after she told us about her experience, we discussed for a few days and we decided to apply green card for her. She does want to stay in the US permanently after we decided to apply green card for her. I know we made the mistake of not following 60 day rules without knowing this rule in advance of our filing. Her multi-entry B1/B2 visa is valid for only 1 year and it will be almost impossible for her to get another B1/B2 visa in China after current green card application gets denied. We'are trying to seek any suggestions/advise to get her green card now. Applying green card through counsor process is really a time-consuming process in China as we have heard many cases stucked there for more than 2 years.

Thanks again for your comments.

[Elaine2007]

Originally posted by Rough Neighbor:
Because you didn't know the rule, sorry, doesn't excuse you from the consequences of the violation, you know that, right?. Now, how could you convince the USCIS that she "doesn't have the intention" to immigrate when you have filed her paperwork for that purpose? Please put yourself in the shoes of the officer and you're confronted with the same case as your mother's, what would you do?

And the reason why she was questioned on her return was because of the very short gap between her departure in February and her return in June. You know, the CBP is suspecting that she is coming here not "plainly" for a pleasure trip.

Rough, Thanks a lot for all your comments. My earlier comments is to explain that my mother didn't have the intention to obtain the Immigrant Visa when she entered US on June 20th with B1/B2. But after she told us about her experience, we discussed for a few days and we decided to apply green card for her. She does want to stay in the US permanently after we decided to apply green card for her. I know we made the mistake of not following 60 day rules without knowing this rule in advance of our filing, and we are accepting the consequence. Frankly if I'm the officer, I would give the application a second chance as they didn't know the rule and they didn't intent to violate it. My mother's multi-entry B1/B2 visa is valid for only 1 year and expired this July. And it will be almost impossible for her to get another B1/B2 visa in China after current green card application gets denied. We'are trying to seek any suggestions/advise to get her green card now. Applying green card through counsor process is really a time-consuming process in China as we have heard many cases stucked there for more than 2 years. Our only purpose now is to help my mother stay here legeally with us.

Thanks again!