GC Pending - AOS and I-485?
Hi,
We filed for permanent resident status for my over 21 unmarried son. We have been informed that it is looking to be around 9 months before a visa number is allocated. My question is (my son is not currently in the US) if my son was to come to the US tomorrow for example, can we apply for the AOS and I-485 and then would that enable him to stay?
Trying to get my head around it all. Thanks
Under what visa would he come? If he came on a nonimmigrant visa such as a visitors or student visa, and if you filed AOS, it will be denied because you have already filed a I-130. Using a nonimmigrant visa such as a visitors or student visa while a I-130 is pending is called misrepresentation or misuse of the visa.
However if he came on a H1 visa, which allows dual intent then I see no problem for him adjusting status with the I-485.
Thanks for your response.
The Visa would be a B1/B2. However I asked the question because I have read about the AOS which allows one to stay while the I-130 has been applied for??? I may be mistaken...
Yes, AOS allows staying in the US to wait for the green card, but AOS requires a number of conditions be met.
You cant file AOS if your priority date is not current according to the visa bulletin. You are an estimated 9 months away from that, so you would still have to wait even if your son was in the US right now.
In addition, the B1/B2 does not allow immigrant intent. With your son having a permanent resident or citizen parent and an I-130 filed on his behalf, he will almost certainly be refused entry if the officer is aware of those facts. And if he is allowed into the US, the AOS would probably be denied for entering with immigrant intent.
Although spouses and under-21 unmarried children of US citizens are normally given leniency for AOS purposes with respect to the immigrant intent issue, that doesnt apply here, because he is over 21.