Q. My uncle has filed an I-130 petition for his daughter who is over 21, married, and has children. I know the law says the process can take up to 10 years. Can he apply for a visitor’s visa and adjust her status while the I-130 petition is processing? In addition, can this process speed up as a result of my uncle’s disability and his age?

February 17, 2012 | Adjustment of Status, Family Petition, Immigrant Visas

A. It is unlikely the daughter will get a visitor’s visa while she is waiting to process for an immigrant visa. Even if she got the visa, U.S. Citizenship and Immigration Services might not let her stay here legally until she gets to the front of the line for her immigrant visa. If she stays here illegally, she would have to return home for her immigrant visa interview, with all the risks and problems that entails. A U.S. consular officer might consider your uncle’s age and disability, but my bet is that the daughter won’t get the visa. She can try, and so long as she tells the truth to the consular officer who interviews her, she risks only the visa application fee.

I am assuming your uncle is a U.S. citizen since a permanent resident cannot petition for a married son or daughter. The way the U.S. consuls look at cases like this, is to view the filing of a family petition as a negative factor. That’s because the petition is evidence that the daughter wants to live permanently in the United States. The consul will likely be concerned that she won’t return when her visitor’s stay expires.