Can My Parents Travel on a Visitor Visa to the US While My I-485 is Being Processed?

Many prospective immigrants find themselves in a challenging situation when they need to bring their family members to the United States. This article aims to clarify the process and potential issues involved when your parents wish to travel on a visitor visa while you are in the United States with an approved I-485 application.

Understanding the Requirements

While an I-485 application is pending, the immigrant visa process cannot be undertaken. This is because you are entering the United States on a nonimmigrant visa (visitor visa) with the intent to adjust your status to a permanent resident through an immigrant visa. Doing so can result in what is known as "preconceived intent," which can lead to the denial of your adjustment of status application. Consequently, your parents must not travel solely based on your I-485 approval. Instead, their travel must align with their visitor visa's purpose.

Challenges and Legal Implications

Only immediate relatives of U.S. citizens can file the I-485 application while still residing in the U.S. on a nonimmigrant visa. If you are a beneficiary of a family-based or employment-based preference category, filing the I-485 application while in the U.S. on a visitor visa is strictly prohibited. You risk being deemed inadmissible and potentially barred from the United States for life. Other categories do not have similar provisions for filing while in the U.S., and doing so would make you vulnerable to the charge of having filed fraudulently.

Another critical challenge is the issue of overstay. If you or your parents overstay your permitted time in the U.S. while trying to circumvent regular immigration procedures, you can face severe penalties. Overstaying can lead to three- or ten-year bars on re-entry into the country, depending on the duration of the overstay. It’s important to abide by the visitor visa rules to avoid such complications.

Legality and Consequences

Legally, you cannot enter the U.S. with a nonimmigrant visa and then attempt to gain permanent residency through an I-485. If you do, you are in violation of the law and could face deportation. However, it is unlikely that law enforcement will actively pursue you for an expired visa status, especially if your intentions are benign and your application has been approved for an I-130. This does not mean that you can exploit this situation; rather, it underscores the importance of strict adherence to legal procedures.

The upside is that you can legally work without an Employment Authorization Document (EAD) if you adjust your status to a permanent resident. However, entering the U.S. on a visitor visa to bypass the proper channels is highly risky. Employers can take advantage of your undocumented status, and any illegal work activity can jeopardize your I-485 application.

Potential legal solutions include applying for an extension of your stay by filing the appropriate forms. Given the lengthy processing time for an I-485, it is quite possible that you may require multiple extensions to remain in the U.S. until your application is processed.

Seeking Professional Advice

It's essential to consult with an immigration attorney who can guide you through the complexities of this process. Your attorney can help you with the necessary adjustments to your status, ensuring that your parents can stay in the U.S. legally and that your I-485 application is not jeopardized.

Once the attorney helps you change your status with immigration, you can legally remain in the U.S. until your green card is approved. However, keep in mind that your parents will be in the U.S. on a visitor visa and cannot leave the country during this period.

Be cautious about any discrepancies you may reveal during interactions with U.S. Citizenship and Immigration Services (USCIS) or Customs and Border Protection (CBP). If you have lied about the length of your visit, it can reflect poorly on your character and credibility, which could negatively impact the success of your I-485 application.

Conclusion

While an I-485 is being processed, your parents should not use a visitor visa for the purpose of overstaying or attempting to adjust their status. Instead, they should plan their travel carefully to ensure compliance with U.S. immigration rules. Professional legal assistance can provide the guidance needed to navigate these complexities and achieve a favorable outcome.