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Expert James
Expert James, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 11550
Experience:  Write FOR JAMES to get my help!
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My father is here on a visit visa. He over stayed his visa.

Customer Question

My father is here on a visit visa. He over stayed his visa. Now i filled for him an extension but no response yet. Im about to send in for him AOS but not sure if i should wait for the response about the extension request or just go ahead. . also Is it faster to send in the I 130 and the AOS together ? or first the I -i30 and then the AOS after ? I would rather send them separatly because its easier for me finanially
JA: What is your official status? Do you have any pending applications or petitions with USCIS?
Customer: Im a u.s citizen and my father is on a visit visa with an extension application pending
JA: Have you talked to a lawyer yet?
Customer: no
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 5 months ago.
Category: Immigration Law
Expert:  Expert James replied 5 months ago.

Hello! Thank you for using Just Answer. I am James, and I will be assisting you. Please give me a few minutes to review your question and prepare a response.

Expert:  Expert James replied 5 months ago.

Thank you so much for your patience.

As we work through this, think about this as a back and forth conversation. Once you've received the information you need, please leave me a positive rating of 3, 4, or 5 stars. This is the only way I get credit for doing my job. Please do not forget to do this before leaving the site. Like you, I want to get credit for doing my job. I am sure you understand.

ANSWER: If your father was out of tsatus before he filed for the extension, then he has no status from which to extend. Therefore, he would very likely be denied the extension.

But since you are a US citizen, and he entered the US legally, the best thing to do is to apply for adjustment of status to permanent resident, rather than file the extension? Why? Because a parent of a US citizen who is 21 years old or older can file for adjustment of status, even if his legal status was already expired. He is an immediate relative, so it does not matter that his status was already expired.

So yes, file the I-130 and the I-485 together at the same time, in the same envelope.

I hope I have answered your questions. If I have, then please help me get credit for doing my job, by giving me a positive rating of 4 or 5 stars or any of the smiling faces. If you still have more questions, you can ask them even after you’ve given a rating.

I aim to give you excellent service, even if the outcome is not what you wanted. So I am happy to answer any related follow-up questions you might have, at no additional charge.

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Customer: replied 5 months ago.
i filled an extension for him because at first we didnt want the aos. Yes his visa was still valid at that time.
Again...
Would it be better to send in the aos while his extension being reviwed .. Or wait until the answer ?
Also is it faster to send the i-130 together with the aos? Or it doesnt make deference when it comes to speed?
Expert:  Expert James replied 5 months ago.

You said he overstayed, which means he is out of status. It doesn't matter if the visa stamp is valid or not, once he is in the US. What matters is his STATUS.

It is better to send it now, while it is pending, as this protects him from any negative outcome on the extension request.

It is faster to send them together. And if he is out of status because of the overstay, then sending only the I-130 will not protect him. Only the receipt of the I-485 will protect him.

Kindly remember that I do not get a salary here. Your positive rating is the only way I am rewarded for doing my job. So please do not forget to give me 3 or more stars, or any smiling faces, before leaving the site today. Thank you!

Customer: replied 5 months ago.
sorry i misworded it. He didnt over stay. I meant to say he is now. But at the time of they received his request for an extension he was still on valid status.So let me comfirm this...
I can send the aos while while his extension still pending and you think thats better regardless that the fact he was not out of status before they receieved his request?And its faster to send them both?
Expert:  Expert James replied 5 months ago.

When did you file the extension?

Customer: replied 5 months ago.
before his permited time I-94 ended and they received it before it ended as well.
Expert:  Expert James replied 5 months ago.

The date, please.

Customer: replied 5 months ago.
They received it on Sept 22, 2016
Expert:  Expert James replied 5 months ago.

OK, thank you very much. Kindly remember that I do not get a salary here. Please do not forget to give me 3 or more stars, or any smiling faces, before leaving the site today. Thank you!

ANSWER: What I would do is wait until at least 60 days have passed from the FILING of the extension, before filing any I-130/I-485 packet. Why? Becuase when the I-539 for extension of visitor status was filed, he needed to have visitor intent. And if he applies for immigrant intent too soon, it might appear that his intent was never to remain a visitor; rather, to be here as an immigrant. Can you file the I-130 and I-485 before the 60 to 90 days? Sure. But if it were me, I would not risk the denial based on immigration benefit fraud. The longer he waits, the better.

I don't know what you mean by "faster." The I-130 takes as long as it takes. The i-485 takes as long as it takes. If you file them separately, they will be processed separately, one at a time. If you file them concurrently, they will be processed concurrently. So ultimately, a result will come down faster if they are field together.

I hope I have answered your questions. Please help me get credit for doing my job, by giving me a positive rating of 4 or 5 stars or any of the smiling faces. If you still have more questions, you can ask them even after you’ve given a rating.

I aim to give you excellent service, even if the outcome is not what you wanted. So I am happy to answer any related follow-up questions you might have, at no additional charge.

And if you want to talk on the phone for 30 minutes, I can send you an offer for that.

A BONUS is also appreciated if you feel I've earned it.

And if you have questions in the future, write FOR JAMES in the question and I will be your personal Expert in this category.

Thank you!

Expert:  Expert James replied 5 months ago.

Hi, I’m just checking in to see how things are going.

I see you have reviewed my answer but I did not get credit for answering your question yet. Do you need more help or need me to explain anything else?

Please let me know either way.

Thank you!

Customer: replied 5 months ago.
Hello sorry i was very busy .. yes please two last questions to clearify thanks1-If the request for Extension came back with reject will that make things more complicated for his AOS application?
2- If i wait few days like you suggested and filled for AOS but the respose for extension is not out yet will that eliminate/Cancel the extension request as soon as i file the AOS?
Expert:  Expert James replied 5 months ago.

OK, I will answer these. But understand that I get credit for doing my job only when you give me a positive rating. I am concerned that I will not get credit for this since more than a week has passed already. You want to get compensated for doing your job, and I am no different.

QUESTION: If the request for Extension came back with reject will that make things more complicated for his AOS application?

ANSWER: I have no way of making a prediction on this. All I can say is, as an immediate relative of a US citizen, he is eligible to adjust his status to permanent resident, even if he is out of status. So it is possible hat even if it is rejected or denied, he could still get his green card without leaving the US. Although it is likely that likely would approve it anyway (i.e., that it would not complicate things), they are authorized to deny it.

QUESTION: If I wait few days like you suggested and filled for AOS but the response for extension is not out yet will that eliminate/Cancel the extension request as soon as I file the AOS?

ANSWER: Not necessarily. It depends on how far along in the process the extension request is, and if the extension request officer decides, based on the filing of the AOS, to cancel the visitor extension request. Or if the AOS officer terminated the visitor extension request since the AOS was filed. I have no way of predicting what will actually happen, as these decisions are completely discretionary.

Kindly remember that I do not get a salary here. Your positive rating is the only way I am rewarded for doing my job. So please do not forget to give me 4 or 5 stars or any smiling faces, before leaving the site today.

Thank you!

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