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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 108681
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Have an important question! I'm us citizen, my mother has an

Customer Question

Hello! Have an important question! I'm us citizen, my mother has an interview for the green card on Jan 5
Her husband (not my father) are married almost 2 years ago( before we applied for her green card)
My step father has a 10 year visa B2 his I-94 expires on Dec 16, today we have send I-539 for extension of say ,with all the supporting documents. My question, in case of denial, what will happen, and from Jan 5 (after my mother will have a green card) can she apply for her husband green card, while he is under pending I-539? His I-94 will be expired by this time. And if the visa extension will be denied ,he will have to leave US right away, what is the best steps to do to file for his green card.
Tank you so much for your help!
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello! My name is***** and I am a licensed attorney with more than 13 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

Even if his extension request is approved, you understand that since your mother will not become a U.S. Citizen immediately, he still has to go home because it would take a year and a half for a visa to become available to him through your mother?

Customer: replied 1 year ago.
that I know:)
Customer: replied 1 year ago.
I know he will have to leave a few times during his waiting time for a green card, its important to stay in status!
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

That's a problem. He won't be able to stay in the U.S. Why is it important for him to stay in the U.S.? Why can't he wait outside?

Customer: replied 1 year ago.
my mother will be here. it will be hard, but he can stay here with his tourist visa for 6 months and then leave and come again
Customer: replied 1 year ago.
we just worry about complications if the extension stay will be denied..(of course he will leave right away)
Customer: replied 1 year ago.
but what to do with applying for his green card,after Jan 5?his visa stay extension will be pending..and his I -94 will expire
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

The problem is this, once she becomes a U.S. Lawful Permanent Resident and files an I-130 for him, it will take about a year and a half before a visa is available to him and he won't be able to extend his stay in the U.S. and then won't let him back in to visit because he has immigrant intent. So he has two choices:

1) Since the extension request has been filed already, he waits for approval or denial. During that time, your mother can file the I-130 for him after she becomes a Lawful Permanent Resident (LPR). If he is approved for the extension, he stays as long as he can and then if he overstays, he CANNOT overstay longer than 180 days or he will have a 3 year bar that he cannot come back even through his spouse unless he gets a very hard to get waiver. If he is denied the extension, similarly, he cannot overstay longer than 180 days. So basically, if the extension is approved and he decides to also overstay, he would probably be looking at being home waiting for 6 months or a little longer. If the extension is denied, he would probably be looking at staying home for about a year or so.

2) Once your mother becomes an LPR, she files an I-130 for him and an I-131 Re-Entry Permit for her. Then they both leave when he has to leave and she can go with him and the I-131 allows her to stay outside of the U.S. up to 2 years and not lose Residency status. Here is a link to the I-131:

That was, with the second option which is safer, they can be together outside of the U.S. waiting.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.

Customer: replied 1 year ago.
Thank you Guillermo!
So ,once again, my mother can file for him after she get's a green card, while his visa extension is pending, and his I-94 is out of date.That's okay?
Are you sure he will not be allowed to reenter to US with tourist visa, once we apply for his green card?
And what about after we file for his green card, and his I-I-539 form denied , he will move back to his country, what about his biometrics and ect.? will the fact that he will leave US reflect his application in any way?
Thank you so much for your help!!
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Yes, but he will have to leave the U.S. to get his own green card in the future and he cannot stay illegally in the U.S. longer than 180 days. And yes, I am sure that once they know he has immigrant intent, it will be difficult for him to be allowed into the U.S. as a visitor. The biometrics and such are handled outside of the U.S. through the U.S. Embassy.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello Tatiana. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Thank you for your kindness and respect. Good luck to you.

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