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Can you file for an I 485 with an expired I 94?

Detroit, MI |

My in-laws application for I 539 was denied. Their I 94 expired while we were waiting for the processing of the I 539. My wife is a USC and we would like to file an I 485 for them. Currently, they are planning to leave in two weeks. Do we file I 485 now, or wait until they can return on B2 visa and then apply when they are here. Or do we file an I 130 while they are out of the country and wait. Their B2 is good for another year, but I am getting nervous that they may have trouble getting another vise or re-entry at POE. Also afraid that could be approved, and then removed for being out of status for too long and banned for three years. Suggestions?

Thanks for the response. They did not enter as tourists looking to get permanent residence. I never even really considered permanent residence for them. We only became concerned after their I 539 was denied and I discovered they were out of status. We are planning on visiting them this summer and they were going to return with us. I just did not want them to be denied re-entry because of this overstay. They are returning within the 30 days as ordered. If they later wanted to apply for LPR, you are suggesting that it is better that my wife (USC, as am I) apply for the I-130 here and they go through consular processing as opposed to bringing them here on a B2 and applying for AOS through an I 485. The latter seems easier and quicker, but I can understand why CIS agents would be suspicious.

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Attorney answers 1


Your in-laws should not enter the US in B-2 status if they intend to be permanent residents. B-2 visitors are supposed to intend to return home at the end of their visit to the US, definitely NOT intent to get permanent residence. Your wife could file the I-130 now and they could concurrently file for Adjustment of Status (I-485). The fact that they overstayed their I-94s should not prevent the AOS getting approved because the parents are considered "immediate relatives" so CIS forgives an overstay. CIS might not forgive any misrepresentation, however, so your parents need to be able to convince CIS that they didn't enter as tourists knowing that they would apply for permanent residence.

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