Can I ask my father who entered on a tourist visa?

In this week's Consulta Migratoria® column I answer a question from a reader who wishes to emigrate to her father.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

This is the columna:

I am an American citizen and I have my Venezuelan father visiting the United States since May 2018. His return date for Venezuela is in November of this year. Should I file a family petition with immigration taking advantage of the fact that he is here on a tourist visa or do I file the petition after he returns to Venezuela? -Diana H.

Diana, you should petition your father as soon as possible, since for several years now the U.S. Congress has been proposing to eliminate the right of U.S. citizens to petition for their parents, children over 21 and siblings.

To petition for your parent you will have to show that you are related, that you are a U.S. citizen and that you can support your parent alone or with the help of a co-sponsor, or that your parent has enough income or assets to support himself or herself.

You do not tell me whether your father will apply for an immigrant visa inside or outside the United States after he is approved for the family petition you will file on his behalf.

This is important, because if your father applies for permanent residence within the United States through an adjustment of status application, U.S. Citizenship and Immigration Services (USCIS) will review it carefully to determine whether he intended to stay when he entered legally on a tourist visa in May, or whether the intent occurred after he entered the country.

If your father already intended to stay and told the customs officer when he entered the U.S. that he was coming for a trip and was going back to Venezuela, this could be considered a misrepresentation to an immigration officer. This would make your father inadmissible and he would not be able to obtain permanent residency unless USCIS grants him a waiver.

Diana, before you begin any proceedings, please consult with an immigration attorney.