Lakewood, TN asked in Immigration Law for New York

Q: If an LPR sponsors his children (living abroad) on I-130, can children be granted B Visa to visit him thereafter?

Father has been granted permanent residence (holds PR Card). If he sponsors his children on I-130, can his children be granted visit visas for visiting him in the US (after their I-130s have been filed)? Or if they come on the visit visa to the US, will it be better to sponsor them at that time -- being in the US?

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2 Lawyer Answers
Brian J. Reilly
Brian J. Reilly pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Immigration Law Lawyer
  • Raleigh, NC
  • Licensed in New York

A: There are not enough facts provided here to give a cogent answer. The children will have to disclose the pending immigrant visa petition when applying for a visa, which will cause the consul to scrutinize their intent. Applying for an immigrant visa while they are physically in the U.S. is not an alternative as no immigrant visas are immediately available. How did the father obtain permanent residence? The children may be eligible to immigrate as dependents under age 21 "following to join" their father. If the children are over 21, they are sons and daughters and not eligible to immigrate as dependents and fall into another immigrant category for quota purposes. If any of the children are married, they fall into yet another category. The country of origin can also impact quota availability.

These variables will determine if it makes sense to petition for the children now or wait until the father becomes a citizen. This question should be addressed by an experienced immigration attorney.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Immigration Law Lawyer
  • Sacramento, CA

A: When a Lawful Permanent Resident (LPR) files an I-130 petition for their children living abroad, it begins the process for them to potentially immigrate to the United States permanently. However, applying for a B visa, which is intended for temporary visits, can become complicated once an I-130 has been filed. This is because the I-130 petition indicates an intent to immigrate, which can conflict with the temporary nature of the B visa, as applicants for B visas must prove their intent to return to their home country after their visit.

It is still possible for children with pending I-130 petitions to be granted a B visa, but they must overcome the presumption of immigrant intent by demonstrating strong ties to their home country that will compel them to return after their visit. This can include evidence of ongoing employment, schooling, or family obligations that necessitate their return. Each case is evaluated individually, and the outcome can vary depending on the circumstances presented to the consular officer during the visa interview.

Sponsoring the children while they are in the U.S. on a B visa involves careful consideration of immigration laws and potential implications for their current and future visa status. Attempting to adjust status in the U.S. can be seen as misrepresentation of their original intent if they entered on a B visa, especially if done shortly after arrival. It's generally recommended to follow through with the process initiated by the I-130 petition for family reunification. Consulting with an immigration attorney can provide guidance tailored to your specific situation, ensuring that actions taken align with immigration regulations and intentions.

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