Adjustment of status from OPT to I-130 - petitioner's involvement and status

Question

I came to the United States on F1 (Student Visa) in 2015 and I graduated from school. I then got OPT (Optional Practical Training) and an Employment Authorization Card. I am working legally right now.

On the other hand, my dad is a permanent resident (Green Card holder) and he applied for an I-130 (Petition for Alien Relative) for me in 2011. The application is with the NVC (National Visa Center) right now.

My Priority Date now follows the table for filing visa applications, not the final action dates table in the Visa Bulletin so I can apply. I have 2 options now:

1. Adjustment of Status.
2. Consular Processing

Since I am physically present in the United States I want to apply for Adjustment of Status. My dad is the petitioner and I am the principal applicant. My question is about my interview for Adjustment of Status:

Should my dad come to the interview with me? Or is it optional? On the other hand, my dad had been in my country (Out of the United States) for more than 6 years. I know that he has to not leave the United States for more than 6 months, but he had some health condition and he had to go to a hospital in my country. He came recently to the United States for a month and he got his SSN and ID. He also has a bank account and he filed for taxes for the last 3 years although he didn't work in the United States at all.

Does that affect the process of Adjustment of Status? If yes what can he do to avoid that? What are the documents that we need to apply for Adjustment of Status? Is the taxes issue related to the Adjustment of Status? If there is any suggestion that would help please advise me.

Answer 1

I am assuming you are in the F2B category (unmarried over-21 child of permanent resident) which the USCIS chart for this month shows that Adjustment of Status can be filed for priority dates before Sep 1, 2011 (assuming you weren't born in Mexico or the Philippines). (Note that USCIS doesn't always use the Date for Filing chart. It chooses one of the two Department of State charts each month; it usually chooses the Date for Filing chart in the first few months of the fiscal year (October til March/April), and the Final Action Date chart for the last few days of the fiscal year (April/May til September), so make sure you file AOS before the chart switches to Final Action Date as your priority date won't be able to file then.) Since you are in status in the US, if your priority date is before that, you are correct that you can file Adjustment of Status (I-485) this month.

As for your father's permanent resident status, if you mean that he has been out of the US for 6 years continuously, with no trips back to the US, it is likely that an officer would determine him to have abandoned residency. But abandonment of residency is subjective and looks at many factors, not just time out of the US, so it's not possible to say for sure. If he last entered the US on his green card (and not a tourist visa or something like that), then the officer must have determined him to have not abandoned residency despite his time out of the US, or the officer wasn't aware of his time out of the US. The next time he comes to the US, there is again risk that he may be found by the officer to have abandoned residency, in which case the officer may ask him to voluntarily relinquish permanent residency, or refer him to immigration court for removal proceedings. In any case, until he voluntarily signs to relinquish permanent residency or an immigration judge orders him removed, he is still legally a permanent resident and we will operate on that assumption.

I believe that, if there is an interview, both of you will have to go (so he will need to be in the US for that), though there isn't always an interview in parent-child cases.

As a family-based petitioner, your father will need to fill out an I-864 Affidavit of Support that is sent with your I-485. He needs to be domiciled in the US in order to do the Affidavit of Support. That means he needs to be currently living in the US, or he needs to provide evidence that he is abroad temporarily or intends to reestablish domicile in the US no later than your Adjustment of Status. Usually a permanent resident would be domiciled in the US, but his case is unusual and I am not sure if he meets that.

Also for the Affidavit of Support, his current household income needs to meet 125% of the poverty level, or a joint sponsor whose household income meets that needs to fill out another Affidavit of Support. Your (the intending immigrant's) income can be counted in the sponsor's household income, since you are working legally in the US, so if you have a decent salary, your father's household income should be enough, even if he doesn't currently have any income.