Green Card Adjustment Remains Available to Parents and Spouses of U.S. Citizens Despite Overstayed Status
Citing USCIS policy guidance, the article explains that immediate relatives of U.S. citizens generally may still adjust status despite being out of status, unaffected by certain INA 245(a) and 245(c) bars. It covers who qualifies as an immediate relative, risks of adjusting after entry, and options for B1/B2 visitors, including extensions versus filing I-485 directly.
Recently, several readers have asked: their parents have already applied for a green card in China (or are preparing to apply), and are currently visiting the U.S. on a B1/B2 visa. Due to the pandemic and flight cancellations, they cannot return to China. What should be noted when applying for an extension of stay?
For overseas applicants subject to consular processing, after entering the U.S. lawfully, they may choose to adjust status (Adjustment of Status; AOS). However, it is generally advised not to change or adjust status within 90 days of entry; see this article for reasons. Additionally, adjusting status after entering on a B1/B2 visa (especially filing I-485 soon after entry) carries the legal risk of being found to have “misrepresented true intent at entry”; see this article. Finally, generally speaking, applicants must maintain lawful status when filing for AOS.
However, if the inquiring reader is a U.S. citizen (only U.S. citizens can petition for parents), then the parents are immediate relatives and may adjust status even if out of status. See the USCIS Policy Manual [link]:
An alien is barred from adjustment of status if the alien is in an unlawful immigration status on the date of filing the adjustment application. [1] This bar to adjustment does not apply to: – Immediate relatives; [2] – Violence Against Women Act (VAWA)-based applicants; – Certain alien doctors and their accompanying spouse and children; [3] – Certain G-4 international organization employees, NATO-6 employees, and their family members; [4] – Special immigrant juveniles; [5] – Certain members of the U.S. armed forces and their spouses and children; [6] or – Employment-based applicants who meet the INA 245(k) exemption.
and [link]:
Any adjustment applicant is ineligible to adjust status under INA 245(a) if, other than through no fault of his or her own or for technical reasons, [1] he or she has ever: – Failed to continuously maintain a lawful status since entry into the United States; [2] or – Violated the terms of his or her nonimmigrant status. [3] The INA 245(c)(2) and INA 245(c)(8) bars to adjustment do not apply to: – Immediate relatives; [4] – Violence Against Women Act (VAWA)-based applicants; – Certain physicians and their accompanying spouse and children; [5] – Certain G-4 international organization employees, NATO-6 employees, and their family members; [6] – Special immigrant juveniles; [7] or – Certain members of the U.S. armed forces and their spouse and children. [8] Employment-based applicants also may be eligible for exemption from this bar under INA 245(k). [9]
“Immediate relatives” under immigration law include [see]: spouses of U.S. citizens; unmarried children under 21 of U.S. citizens; and parents of U.S. citizens who are 21 or older. In addition to being able to adjust status while out of status, “immediate relatives” are not subject to green card quotas and do not need to wait for a visa number. For the readers who asked at the beginning of this article, my advice is: since you have already planned to apply for your parents, or even have already filed a green card application, and they are currently in the United States, there is no need to spend money applying for a B1/B2 extension. Simply file I-485 to adjust status and apply for Advance Parole at the same time.
Disclaimer: This article is for informational purposes only and does not constitute legal advice.
