Guide to Sponsoring Parents to the US – Part 1

Ame Coats: Hi everyone.  My name is Ame Coats.  I’m an immigration attorney with Bashyam Global .  We are a full service immigration law firm, and we serve clients throughout the United States.  I’m here today with our managing partner, Murali Bashyam.

Murali Bashyam: Hello Ame.

Ame Coats: And we’re going to be talking about how a U.S. citizen can sponsor their parents for lawful permanent residence status in the United States.  This webinar is divided into three sections, and first we’re just going to discuss an overview of how to get your parents to the U.S.  Then we’re going to talk about the immigrant visa process, which is where your parents would apply for an immigrant visa at a U.S. embassy overseas.  And then finally we’re going to discuss adjustment of status, which is becoming a permanent resident while your parent is actually physically in the U.S.

And then finally, we’re going to take questions at the end.  We’ve already got a couple of questions actually about visitor visas for parents.  And although I haven’t specifically planned any slides on that topic, since you’ve asked questions in the beginning, then at the end of our presentation when we go over all the questions, Murali and I will talk about that process as well.  Our first section is about just the general overview.  Some people are – it’s a little bit confusing as far as the different processes to get a green card for your parents.  If you do adjustment of status, that means that the beneficiary, who is your parent, is actually present in the U.S. and filed all the paperwork here in the U.S.

Murali Bashyam: Did they have to be in status Ame?

Ame Coats: No, they actually don’t.  But it is a little bit tricky.  I mean most people who are out of status can’t get a green card here in the U.S.  But the government will forgive that for certain immediate relatives of U.S. citizens.  So if your parent is in the U.S. and they entered the country legally, but they’re out of status, then you may be able to apply for adjustment of status for them.  But you definitely need to seek advice from an attorney on that.

Murali Bashyam: It’s really a case-by-case basis, right?

Ame Coats: Right.  Right.  Because I definitely don’t want the folks who are out there listening to confuse being out of legal status with someone who crosses the border without being inspected by a port of entry officer.  And that’s very different.  It has lots of different problems there.  Also there are issues if your parent enters in as a visitor and then also applies for adjustment for status.  So we’re going to talk about that in a separate slide in just a moment.  The other option for bringing your parent here in immigrant green card status is to file an I-130 petition wherein you start the process here in the United States, but ultimately it ends up at a U.S. embassy in your parent’s home country.

And they will apply for an immigrant visa at the embassy, and then when they enter the United States, they enter with a green card.  So if you’re going to sponsor your parents for permanent resident status, you have to decide right away, are you going to do adjustment of status, and that’s if they’re here, or are you going to do consular processing where they’re back in their home country and they’re going to go through an interview.

Murali Bashyam: Quick question in case some of the listeners don’t know what an I-130 is, can you explain a little bit about what an I-130 is?

Ame Coats: Right.  An I-130 is an immediate – it’s called an immediate relative petition.  And that’s where the U.S. citizen proves the relationship with the beneficiary, in this case, the parent.  And so the whole point of that petition is the petitioner saying okay, I’m a U.S. citizen.  I’m entitled to file for my parent, and this is truly my parent.  Here’s our evidence.

Murali Bashyam: First step of the process basically.

Ame Coats: Right.

Murali Bashyam: Whether you do adjustment or status or consular processing.

Ame Coats: Exactly.  So usually when I talk with a U.S. citizen for the first time about sponsoring their parents, they all want to do adjustment of status.  I mean it just seems easier.  In many cases, the parent’s already here on a  tourist visa.  That’s when they call, and they want to know what can I do to get a green card for my parent.  Well, let me explain what the problem is with this.  When you enter as a tourist, your intention is supposed to be just to stay here temporarily.

So if you come as a tourist but your plan in your mind is to go ahead and apply for a green card when you get here, then you actually entered with a fraudulent intent.  Your intent should have been just to stay here temporarily, but actually it was to stay here permanently.  So the problem in this situation is how do we figure out who already had this intention to stay here permanently and who did not, because a lot of the calls I get are from U.S. citizens who have parents visiting, parents’ been here for a month or two, and after watching them get around and maybe spending quality time with them for the first time in a very long time, they realize, wow, my mom is a little fragile.  I really don’t want her going back.  She needs someone to look after her.  Then that’s when they decide they want to get a green card.

Murali Bashyam: I’ve got a question Ame.  So we were talking about intention, planning to fraud when you entered as a visitor.  Let’s say that the U.S. citizen child has the intention of eventually – they want the parent to actually permanently reside in the United States, but the parents don’t know that yet.  And the parents visit the United States and the U.S. citizen child all along is thinking well, maybe if the parents spent some time with us here in the U.S., they’ll actually want to live here, we can sponsor them and all that, what do you think about that?  Do you think the parents are in any way jeopardizing their immigration status or future green card case in that scenario?

Ame Coats: I think that’s fine because it’s not the parent who has the intention.  It’s the U.S. citizen.  And the U.S. citizen doesn’t really have any specific intent.  It’s just a general intent for maybe one day go down that road.  They’re not really sure yet.  So I think that one rule of thumb that you can sort of go by is what’s called the 30/60 Day Rule.  And I don’t think this is really printed anywhere in black and white, but it’s just something that all immigration attorneys know.  And so this is how it goes.

If you enter the United States as a visitor and within 30 days you work without permission or get married, then the immigration service can make a determination that you entered with a fraudulent intent.  Now I know that’s not the situation we’re talking about here, but I think it can be easily paralleled.  If you enter within 30 days and you file for adjustment of status – I mean you enter as a visitor and you file for adjustment of status within 30 days, I mean an immigration officer can parallel that to the 30/60 Day Rule that we use for spouses.  I mean that’s evidence that the person had this planned all along in my mind.

Murali Bashyam: So what if someone comes as a visitor and they may or not have had a real intention to reside in the United States, and 65 days later, the U.S. citizen son or daughter wants to sponsor them, do you really think in that situation that it would come up as an issue?

Ame Coats: Well first of all, you said after 60 days.  And so that’s one of the recommendations that I always have, that first of all, I’m not gonna help anybody pre-plan this.  We don’t take cases where people have planned this and they committed fraud when they entered.

Murali Bashyam: And we don’t recommend it either.

Ame Coats: Right.  Of course.  I mean of course.

Murali Bashyam: Because obviously, if an immigration officer’s going to bring up the whole planning of fraud, it could jeopardize or delay coming to the United States.

Ame Coats: Right.  But it doesn’t usually come up this way.  Usually when I get calls, the parent is already in the United States.  And so even though the 30/60 Day Rule really applies to spouses of U.S. citizens, I use that as a rule of thumb cases for parents.  And I feel that if you wait until after 30 days have gone by, then I think you’re going to be free from a lot of questions.  The officer who interviews your parent can always ask that question.  As backup evidence, you should have whatever you can come up with to show bank accounts and ties to their home country that really they were a return ticket to their home country, whatever you have to show they were planning on going back.  But for practical purposes, I rarely see this issue come up in interviews.

Murali Bashyam: That was going to be my question, is have you seen it come up at all.

Ame Coats: No.  Not for parents of U.S. citizens.  For spouses I’ve seen it come up occasionally.  But still, it’s something that you have to be aware of.

Murali Bashyam: Absolutely.

Ame Coats: I mean the bottom line is if your parent enters as a tourist, when they cross the port of entry gates and show their passport to a port of entry officer, their intention in their mind has to be just to stay here temporarily.  And if you’ve done something to preplan, then coming in and then file for adjustment status, then you are circumventing or attempting to circumvent the immigration laws as they’re on the books.

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