Can a USC legalize an Overstayed Parent Currently in US?

[Adriane]

I have a friend from Mexico, Moses, who's mother, little sister and little brother are all in the US having entered with visas but then overstayed for 8 years or so.

He married a USC and will be eligible for US citizenship next year.

Is there anyway for him to legalize his mother? Like I said, she entered with a visa but then never went back to Mexico. She has been here for 8 years and is a widow.

His brother is 19 and in college, also with an overstayed tourist visa. His sister is 17, same situation. When Moses becomes a citizen, will he need to file a waiver for his mom? Can he? Can he help his siblings at all?

What options does this family have? When

[klaudialaw]

I was in the same situation with my parents. They overstayed their visas and as soon as I became citizen I petitioned for them and they received their papers. I didnt even need a waiver as long as they entered with visas. However, they need to have copies of their I-94 when they entered the US.

[Adriane]

Klaudia, how long did the process take? What did you have to do?

[Adriane]

I'm just bumping this up- I wanted to try & understand how the process will work for this family. I'm guessing he'll need to file an I-130 for his mom?

Does anyone know if there is anything he can do for his borther & sister?

[Laura]

Huh... I didn't think visa overstay was forgiven except by marriage to a USC. I guess I am wrong.

He needs to file I-130s for everyone, and if the mom can AOS, that will be relatively easy and quick, as parents get immediate visa numbers. However the siblings cannot do AOS because their unlawful presence will not be forgiven, and if they leave the U.S. to CDJ or wherever they will not have a relative that can file a waiver for them, since it has to be a spouse or parent.

[Pinkpig]

Adriane,

This is from Heather's site. She has a bit more information there if you want to go to this site and click on the links on the left side. Hopefully this furthers your search a bit.

http://www.humanrightsattorney.com/sub/index.jsp;jsessionid=03D0CC420D1CB405F3685D0BA46B7 BFB?contentid=trpnlLRRrRvuh8aRM66YL8YU

Family-Based Immigration

Through family-based immigration, a U.S. citizen or LPR (lawful permanent resident or "green card" holder) can sponsor his or her close family members for permanent residence.

A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), children, and brothers and sisters. Immigrants of a U.S. citizen who are either children under the age of 21, an adult spouse, or parent of a U.S. citizen are considered "immediate relatives" and are not subject to the visa quota system (the long backlog of waiting time for visa availability). What this means is that if the case is filed correctly and there are no other issues that would cause the immigrant to be ineligible for a green card*, then this process for these individuals can potentially be much faster than if an immigrant in this category was being sponsored by a lawful permanent resident instead of a U.S. citizen.

An LPR (lawful permanent residenct or "green card" holder) can sponsor his or her spouse, minor children, and adult unmarried children. Immigrants who are being sponsored by LPRs are subject to an annual cap or limit on the number of visas available in each category every year. Because of this numerical cap, there are long waiting periods to obtain a visa in most of the family-based immigrant categories when the LPR is the sponsor.

It is important that a person who is in the U.S. who is awaiting approval of an immigrant visa filed for him or her by their LPR relative to remain in valid immigration status through another type of temporary visa while awaiting a decision on the immigrant visa. This is because in almost all circumstances, even if an immigrant visa is approved, if the immigrant does not have legal status at the time or while waiting for the approval, s/he will not be able to adjust status in the U.S. (interview for the green card and pick it up in the U.S). What this means is that the unlawfully present immigrant will have to leave the U.S. and interview for their green card at a consulate abroad. The problem with this is that many immigrants who have been unlawfully present will trigger a 3 or 10 year bar of re-entry into the U.S. (won't be able to come back in most circumstances for this period) the minute they leave U.S. soil, even if an immigrant visa is approved.*

[Laura]

It is important that a person who is in the U.S. who is awaiting approval of an immigrant visa filed for him or her by their LPR relative to remain in valid immigration status through another type of temporary visa while awaiting a decision on the immigrant visa. This is because in almost all circumstances, even if an immigrant visa is approved, if the immigrant does not have legal status at the time or while waiting for the approval, s/he will not be able to adjust status in the U.S.

Hmm... this is an interesting statement. If the petitioned immigrant is married to a USC the overstay is forgiven for sure. I am confused how Klaudia was able to petition her parents if they have overstayed if marriage to a USC is the only circumstance that forgives the overstay.

Klaudia - how long had your parents overstayed their visa?

[Pinkpig]

Hmm... this is an interesting statement. If the petitioned immigrant is married to a USC the overstay is forgiven for sure. I am confused how Klaudia was able to petition her parents if they have overstayed if marriage to a USC is the only circumstance that forgives the overstay.

Klaudia - how long had your parents overstayed their visa?


Was Klaudia an LPR or a USC?

It is important that a person who is in the U.S. who is awaiting approval of an immigrant visa filed for him or her by their LPR relative to remain in valid immigration status through another type of temporary visa while awaiting a decision on the immigrant visa.

[Adriane]

Okay, now I'm confused.

Moses WILL be a USC in about a year. At that point, his mom will have overstayed her visa by 9 years, same thing with her two kids who will be 20 & 19 respectively.

Being overstayed, they still qualify to go to an interview in the US, right? And an adult USC child is a qualifying relative for this purpose? And she won't need a waiver?

It's actually the brother & sister I'm more concerned about- they are both in college in Wisconsin and very, very Americanized. I think that their mother is granted LPR status and they are still under 21 and un-married, they will come along with her- but what if they are over 21? Then can their brother file for them at all?

And for the older one who just turned 19- if they file the initial I-130 before he turns 21, and then he becomes 21, is he no longer eligible? I don't know how long it would take for them to get an appointment in the States (Indiana) but just with the I-130 processing, I'm concerned that he could easily be 21 by the time they get there if he's already 19 and they can't even start for another year....

[Pinkpig]

Adriane,

I am sorry if I confused you. I did not mean to do that.

I am sorry I could not help you.

It seems the rules differ on whether you are a USC or a LPR.

[Laura]

Yikes... yeah, that's complex...

Maybe you should consult with Laurel on their behalf?

[klaudialaw]

Adriane, the process works the same way you petition for your husband. So, you will submit the I-130 and all of the forms for adjustment of status. I believe they are I-130, I-485, I-765,. Now, from what I know, if you file of the forms together its quicker. However, with my process I started with I-130 filed at Vermont Center and the rest of the forms were filed in order one after the other. The whole process for my parents took 5 months. Parents and spouses get papers fast, whereas siblings forever. Let me know if you need any other info.

[klaudialaw]

To Laura:
My parents overstayed for more than 4 years. yeas, I was able to petition for them because I am a USC. However, I was not able to petition for my brother who was EWI.

[Pinkpig]

Adriane,

Does this help any?

http://www.humanrightsattorney.com/sub/index.jsp?contentid=4RXV7SFnHxzbmsy9cdR2HETS

Sponsoring Your Brother or Sister for a Green Card (Permanent Residency)

Who can file for permanent residency for a brother or sister?

Only U.S. citizens can apply for their sibling. Lawful permanent residents cannot.

How long does the process take right now?

The problem with this category is that it is subject to the visa preference system and is considered the 4th preference, one of the longest backlogged categories. It currently takes, on average 10 years, for a brother or sister-based immigrant visa number to become available. Only after that number becomes "current" can the brother or sister apply for entry into the U.S. and a green card if abroad or for a green card if in the U.S. already.

If the brother or sister is already in the U.S. and has been out of status for any time during the long wait for their visa number to become current, that immigrant will in most circumstances have to leave the U.S. to pick up the green card abroad. This could possibly cause a huge problem; the brother or sister could be subject to the 10 year bar if s/he stayed in the US unlawfully over a year and there's no waiver to come back into the US earlier unless the brother or sister has a US citizen child or spouse. Being the brother or sister of a U.S. citizen does not help overcome the unlawful presence bars (the 3 and 10 year bars).

Are there any other options?

This is where it's important to determine a way to keep the brother or sister in the U.S. legally, whether it be by switching from one visa to the next, assuming the immigrant is eligible. The brother/sister category is not a quick route; an immigration attorney should always be consulted to determine the goals of the brother/sister over the next ten years, the options available if any, and the consequences of filing for an immigrant visa.

* * * * *

The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if you are eligible to apply for adjustment of status or whether the potential reward of consular processing is worth any risk created by leaving the U.S.

[Laura]

I think what Adriane is wondering is... when the mother adjusts status, if the siblings and children of the mother will be able to adjust in what I think is called, "following-to-join" benefits, because they are under 21. I have no idea if this applies to people already in the U.S. who have accumulated unlawful presence through an overstay.

If the brother has to petition them separately, or if the mother has to become a USC and petition them as adults, that will take forever.

[Pinkpig]

Well, I have been all over the USCIS and I cannot find the answer or you. That site drives me to drink. (cranberry margaritas, LOL) It just goes around in circles and will not answer your questions.

I suggest a question for Laurel on her chat tomorrow.

The thing is that the least little thing can change everything. All of the information that I can find is general.

IMHO: I would definitely suggest a consult with an immigration attorney who has experience in this process. But then again, I think eveyone should do this before they start any of these processes. They know the right questions to ask. Good Luck to your friends.

[MendozaQH]

I think what Adriane is wondering is... when the mother adjusts status, if the siblings and children of the mother will be able to adjust in what I think is called, "following-to-join" benefits, because they are under 21. I have no idea if this applies to people already in the U.S. who have accumulated unlawful presence through an overstay.

If the brother has to petition them separately, or if the mother has to become a USC and petition them as adults, that will take forever.

I think to have "following-to-join" they must have had the petition submitted prior to their 18th birthday. At that point they have until they are 21 to get the visa. Sooooo, it really sounds like everything is about to time out. Moses cannot petition until he is a USC, but by the time that time comes around, both siblings will be over 18 and will not fall under that category of "following-to-join". They would be better off waiting until the mother can get her citizenship and then she can petition for them to adjust....

I amnot certain on the AOS for a parent in the US once teh parent is out of status. I had only heard of it for the spouse. Have your friend check with a lawyer before they jump into that one.

[MendozaQH]

Well, I have been all over the USCIS and I cannot find the answer or you. That site drives me to drink. (cranberry margaritas, LOL) It just goes around in circles and will not answer your questions.


Doesn't that site SUCK!! The only thing I can ever find on there are the forms and that is because, surprise, surprise, they are in order by number!

[Pinkpig]

Doesn't that site SUCK!! The only thing I can ever find on there are the forms and that is because, surprise, surprise, they are in order by number!

Yes, it does. It is the pits....I was trying and trying and then my computer went down. Oh well, at least I got a little work done while the computer was down.

I definitely think they need legal guidance. They need to get an over all strategy to deal with their situations. There are so many nuances and the least little thing could really screw them up. It would seem to me that that would be their best bet, and if I were them I would definitely do it before those kids turn 18.

[nmaciel]

I am a recent US citizen. My parents EWI in 2002 and have been here since. As a US citizen can I adjust their status here in the US or do they have to leave and go through CDJ. My mother was also here in 97 but left shorty after.

[Laura]

Actually, dealing with EWI parents is really tough.

As a USC, you can petition them and they do not have to wait for a visa number, which is good. However, no one who EWI can adjust status in the U.S. unless they had a petition filed before April 30, 2001 (which I'm assuming is not the case here, anyway, they would have had to be in the U.S. by some time in 2000).

So, they have to go through CDJ, but here's the problem. As soon as they leave the U.S., because they have already accumulated more than 365 days of illegal presence, they need a waiver, and a USC child is not a qualifying relative for a waiver, only a parent or spouse is. So, your parents would leave the U.S. for their visa interview, be denied, and told there is no waiver for them and that they have to remain outside the U.S. for 10 years.

Please someone correct me if I am wrong, but we've had several questions about this lately, and I'm pretty certain this is right.

[Amazonmamita]

I have a related question. Praying that after my husband receives his PR, then 3 years roughly to citizenship right? After that he can apply for his mother, is a visa overstay. She came on an emergency visa when my father-in-law was very ill and thought he would die. Does it matter what type of visa overstay they are?

[Amazonmamita]

gonna "bump" this to see if anyone can answer my question..........Please:wink:

[Laura]

Amazon - I'm not certain about the overstay. I could ask Laurel in the chat today though.

[Laura]

Amazon, how long ago did she come to the U.S.?

[Amazonmamita]

She has been here almost two years in December. Please ask if you think about it! Your the best and so helpful to everyone. So many on this site are and so knowledgeable. Thank you!!

[Adriane]

Hey bumping this up-

Does anyone have the part of the law that says that a child USC can overcome his/ her parent's overstay? I 100% believe that it's true, I just want to show my friend the part of the law.

Thanks!

[Coventrated]

Overstays are only forgiven when adjusting through marrage.

A USC can petition a parent, but to adjust in the US that parent needs to be in legal status.

Any siblings must be petitioned seperately, they are not added to a Parents petition.

I thought you could file a waiver for Parents, may be wrong, but always wondered how you would show hardship anyway, Spouses is much more obvious. I did not think hardship waivers were available for siblings, even more remote anyway.

[aleful]

Coventrated,
I know lots of parents of USC who entered with tourist visa and overstayed. They received their PR, but they had a I94. They were able to ajust fine. If it was a humanitarian visa, I don't think so. The reason for a humanitarian visa is for an emergency, but it clearly states that you have to return to your country. Good question for Laurel Scott.

[Laura]

Cov - I don't think that's true. I think Adriane is right - parents and spouses can adjust the same way if they have overstayed - other relatives cannot.

[Daniel Green]

While children (people under 21) of USC's , spouses of USC's, or parents of USC's whose sons and daughters are 21 years old or older can adjust if they have just one overstay and no other immigration violations (INA 201(b)(2)(A)(i); INA 245(c)(2)), parents of USC children (under 21) cannot. INA 245(c)(2).

However parents of USC's, whether the USC is a child under 21 or an adult son or daughter who is 21 or older, are not eligible for a waiver of the 3/10 year unlawful presence bar. Only children, sons, daughters, and spouses of USC's or LPR's qualify for the waiver. (INA 212(a)(9)(B)(v))

It would make sense if the same people who fall under the immediate relative definition would also qualify for the waiver, but aside from being unjust, the law can also be a quite illogical.

-Dan

[Marie]

overstays are overcome for anyone who has an immediate USC relative. This is with a legal entry though.


If "otherwise eligible" to immigrate to the U.S., immediate relatives may adjust status to LPR (get a "green card") in the United States even if they may have done any of the following:

* worked without permission,

* remained in the U.S. past the period of lawful admission (e.g., past the expiration date on your I-94) and filed for adjustment of status while in an unlawful status because of that,

Immediate relatives of U.S. citizens are parents, spouses, and unmarried children under 21.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ddd6e6b0eb13d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1 RCRD

[tianh2002]

Hello everyone. I have read the information above. However, I am still unclear whether immediate relatives can get the pardon of overstay when they AOS. I am over 21 and I will get the US citizen in 6 months. My father and brother (currently age of 14) are in the US under B2 visa tourist. But both of them have overstay their visa status for 1 year already. Could I still sponsor my father for his AOS? Can my brother still be eligible for "following-to-joint" under my father AOS (because he's still under 18). Thank you very much