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An elderly couple came to the US to visit their daughter on a visitor's visa toward the end of last year. Due to the coronavirus outbreak, they applied to extend their stay by six months. Application was received but the outcome still pending. Since the COVID situation has not blown over and they do not feel it is safe to travel for who knows how long, their daughter (a US Citizen) wants to petition to adjust their status with forms I-130 and I-485. The question is, can she do this now, while the original extension of stay is still pending?

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  • We can only answer travel questions. Questions about obtaining a green card and other long-term residence questions can be asked on our sister site Expatriates. Aug 4 '20 at 22:04
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Yes. The couple is immigrating in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), and are exempt from the bars to Adjustment of Status (I-485) for being out of status at the time of filing (see USCIS Policy Manual, Volume 7, Part B, Chapter 3) or for failure to maintain status in the past (see Chapter 4). Chapter 8, section B summarizes this:

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21.

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

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  • The applicant is not in lawful immigration status on the date he or she files the adjustment application;

  • The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

Although a pending Extension of Stay application does not by itself count as lawful status for the purposes the bars to Adjustment of Status, this doesn't affect them since they don't have to be in lawful status to file Adjustment of Status in their category. Even if we assume the worst case that their Extension of Stay is denied, and thus they would not have been in status at the time of filing their I-485 (Adjustment of Status), they Adjustment of Status application would still not be affected.

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