0

I am filing for my parents I-130 when they are in the United States. I am not going for adjustment of status. Instead of doing that, I am going for consular filing. This is because they do not want to be here in United States for 1-2 years when Adjustment of status procedures are taking place(We are in California and processing times are longer here).

Anyways, so we decided that we will file for consular filing when they are in United States. Now, I know there are some travel restrictions when I file for Adjustment of status. One of them is that they can not travel outside the United States once I-485 is filed.

My question here is that are there any similar travel restrictions when we go for consular filing? Because we have only filed I-130. SOme of the particular questions being

  1. Can they be in USA when I file for I-130 for consular processing?
  2. If they are, can they stay in USA for a couple of months after filing I-130
  3. Suppose they go back to their home country and they still don't have approval for I-130, can they come back to USA for a couple of days while waiting for I-130 approval?
Improve this question

2 Answers 2

Reset to default
3

The information that, after filing for an AoS you can't travel outside the U.S. is partially incorrect. You indeed need to wait until you have your Advance Parole/EAD card, when you have it though, you are able to come and go as you please. Please note that at the moment AP/EAD card is taking about 8 months to be approved. There are ways to get it expedited in urgent situations.

Also, I'm a little confused about the expectations after your parents receive the green card. So, just in case, let me clarify that once they become Permanent Residents they MUST make the U.S. their primary residence, otherwise USCIS may deem their status as abandoned.

Regarding your questions: 1) Yes, I-130 does not grant status. 2) Yes, they're free to stay as long as they have a valid status/visa. 3) Yes, however, they might have a hard time renewing a Visitor Visa (B1/B2) and face more questions when crossing the border. Basically, they need to prove that they have NO intention to stay in the U.S. and apply for AoS while visiting.

Improve this answer
2
  • if I understood your answer correctly, there are no restrictions if they already have a visitor visa. Which they already do. Would that be a correct assessment?
    – Lost
    Commented Feb 21, 2020 at 5:06
  • 3
    @Lost With or without it there's no restriction. The point is that they need to show strong ties to their country when being admitted or requesting a visa so the government is confident that your parents won't take advantage of an AoS or that they will stay illegally. Having already a visitor visa though, means that they only need to convince the CBP officer to let them in (which in my opinion is way less problematic than a consular officer).
    – IanDan
    Commented Feb 21, 2020 at 14:28
-1

With regards to their ability to return to the United States after the I-130 has been filed, that would be problematic. Having filed the I-130 would establish immigrant intent which is a cause for denial of a non-immigrant visa like a B1/B1 under INA 214(b) (see https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visa-denials.html). Only certain classes of visitors to the United States are allowed to enter while pursuing immigration, including those who have a pending Adjustment of Status case and have been granted Advance Parole. However, visitors on a non-immigrant visa, like a B1/B2, are not able to be seeking to immigrate to the United States. The text of INA 214(b) is dense, but it sums it up:

Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title.

That is to say, unless you can prove that you are not an immigrant (and having filed an I-130 precludes you from being able to prove that), you cannot claim that you are a non-immigrant, and therefore not entitled to a non-immigrant status which includes a B1/B2.

Long story short, once you have filed the I-130, if your parents leave the United States and do not have an Advance Parole document, they will not be able to return before they have received their green card.

NB: I am not a lawyer. This is based on my knowledge having gone through the green card process. You may need to consult with an immigration attorney.

Improve this answer
9
  • Thank you so much for your detailed response. One detail that I may have missed on original question is that they already do have a visitor visa and they do not have to apply for any visa. Can they just travel on an existing visa?
    – Lost
    Commented Feb 21, 2020 at 4:59
  • 2
    I partially disagree with the answer above. While I do agree that filling an I-130 supports an immigrant intent, it does not automatically excludes you from getting non-immigrant visas. However, it does increase significantly the burden in the applicant to prove ties to the home country while the application is pending. Applicants in the F4 category, for example, have to wait over 10 years for a visa to be available. Would they not be able to visit to US during all this time?
    – IanDan
    Commented Feb 21, 2020 at 14:35
  • @Lost Just because your parents have been granted a visa doesn't mean they will be guaranteed entry when they use it. They still need to be eligible when they go to USE the visa. A B1/B2 visa that's granted for 10 years doesn't just give you carte blanche for 10 years until you need to renew it, you need to remain in compliance with the conditions each time it is used. And one of the conditions is lack of immigrant intent.
    – Matthew FitzGerald-Chamberlain
    Commented Feb 21, 2020 at 15:13
  • @IanDan Just because you don't like it doesn't mean it isn't true. While you're correct that immigrant intent isn't automatic, it is absolutely discretionary, there is pretty broad consensus that having a filed I-130 establishes intent as far as I can tell. Perhaps an F4 application would be able to convince an officer that they have no immigrant intent, but that would be up to them to prove. As 214(b) states - "Every alien .. shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer ... that he is entitled to a nonimmigrant status"
    – Matthew FitzGerald-Chamberlain
    Commented Feb 21, 2020 at 15:16
  • @MatthewFitzGerald-Chamberlain I think that we are saying the same thing except that I think that I am more optimistic in regards to being granted admission for the OP's case, which is a matter of opinion, like many things in immigration. In the end, the OP's parents should consider how much rick they are willing to take since, as we all know, officers have the discretion to deny entry for whatever reason to anyone except citizens.
    – IanDan
    Commented Feb 21, 2020 at 18:53

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service and acknowledge you have read our privacy policy.

Not the answer you're looking for? Browse other questions tagged or ask your own question.