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I am a permanent resident. Is it better to file I-130 's for my wife and children whilst they are in the USA (on visitor visas)?

Orlando, FL |

I heard that it may be better for me to submit the I-30 forms together with I-485 whilst my wife and kids are visiting the US (legally), as opposed to submitting just the I-30 forms when they are out of the US. I want my kids to be able to settle and start going to school in the US ASAP, as opposed to having to wait until they are called for an interview in their current country of residence. I have also heard that the USCIS is processing these types of applications straight away (processing status is set to CURRENT), so would it be better if I filed the I-30 and I-485 forms for my family when they next visit the USA?

Attorney Answers 6

Posted

In deciding between of Consular Processing vs. I-485, there are a number factors to consider. The timing that is convenient for your family is one factor, and making sure to not violate immigration law is another factor. In order to be best advised, have a discussion with a licensed and experienced immigration attorney. Most of us are available for a confidential consultation via phone, Skype or in-office. Best of luck.

Immigration Attorney Jeff Khurgel* Assists Clients in all 50 States -- Call or email for a Consultation -- www.khurgel.com -- Contact information below. Kindly note that this posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Remember, this site is akin to an internet blog. Do not rely on information here to make important decisions in your life. Make an appointment to meet with a licensed attorney in his or her office (or via Skype or phone) to obtain competent personal and professional guidance -- Khurgel Immigration Law Firm -- 4199 Campus Drive, Suite 550 / Irvine, CA 92612 / Office: (949) 509-6515 / Direct: (949) 535-6331 / Web: www.khurgel.com / Email: info@khurgel.com / *Attorney Khurgel is a former USCIS and Department of State Embassy Officer.

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Posted

If your family enters on a tourist visa with the preconceived intention of filing applications for Adjustment of Status (I-485's) upon arrival, they could be charged with committing immigration fraud. Entry on a tourist visa requires non-immigrant intent.

Additionally, although the category for spouses of US Permanent Residents is, in fact, showing as "current" on the Visa Bulletin, that does not mean that your application is processed within a short period of time. It merely means that you may apply without waiting several years for immigrant visa availability. Regardless of whether you process in the US or at their local consulate, you are still looking at a processing time of several months in the best case scenario.

I would strongly advise that you consult privately with an immigration attorney before you make critical errors in your immigration case.

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Posted

If they are in valid non immigrant status, then yes, the I-130 and I-485 for each of them can be filed at this time. No, USCIS will not process them "straight away." Normal processing times are around six months for the I-130s. The I-485s will not be processed until the priority dates are current again after they retrogress in October.

The Court of Appeals for the Second Circuit has stated that immigration law is "a notoriously complex and constantly shifting area of law."

You should retain an experienced immigration lawyer to review all the facts, advise you, and handle the case. You can find one through http://www.ailalawyer.com.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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Hello Sir. I hope you are doing well. I tend to agree with you about adjusting status in the U.S., but it does take a few months. And it has to be done properly in order to avoid any preconceived intent issues. I recommend obtaining a full consultation on this so that your family's process will be handled smoothly. Also it may help to hire an attorney with ties to the local USCIS office. Best regards.

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Posted

If your wife and children 'visit' with an intent to remain in the US this may pose an issue for you (them) filing for the I-130 and I-485 at the same time. Otherwise filing both the I-130 and I-485 together is a good option as long as the visa priority dates are current at the time.

888.861.4414
immigration@rbrownllc.com
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Posted

You should consult with an experienced immigration attorney. When did your family enter as visitors? When they entered, was their category not current and, if so, did you only develop the idea of filing the I-130 petitions and I-485 petitions after you saw the category become current. With respect to my colleagues comments about pre-conceived intent to immigrate to the U.S. when entering on a visitor visa, I wholeheartedly agree that it can be a problem. That being said, a person's intent can change after entry with a visitor visa and, in that scenario, adjustment may be possible without any problems. You should consult with an experienced immigration attorney who can review the facts of your case and discuss with you what your family's intent was when they entered.

This answer is for general information purposes only and does not create an attorney/client relationship. You should seek qualified immigration legal counsel who can review your case in depth and provide you with advice specific to your situation. To schedule a free initial consultation with Attorney Kevin D. Slattery, call +1-813-839-7474 or email him at kslattery@slattery-law.com.

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