Single Mom Who Overstayed Visa from Mexico

[immihelp]

Hello,

I would like some advice, please. I am a single mom who came over from Mexico nine years ago on a visa and never went back. I now have a son who is a US citizen by virtue of jus solis (being born here).

My question is this - can I file an AOS on myself through him (he's three) for me? If I were to go back to Mexico, he would then be alone here. There is no father in the picture.

I have no criminal record. I have worked here, some legally and some illegally, truth be told.

Can I file an AOS for myself via my son? If so, what form do I use? Or should I use another method?

Leaving the US to back to Mexico and petitioning from there is not an option.

Thank you in advance for your time and advice.

-Maria.

[kitkat1]

You cannot adjust your status through your son until he is old enough to petition for you. A U.S. Citizen must be at least 21 years of age to petition for a parent.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=01b6194d3e88d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=4f719c7755cb9010VgnVCM10000045f3d6a1 RCRD

[lopay]

kitkat is 100% correct.

[cindy324]

The only way you can adjust is by marriage to a USC. Don't leave the country, otherwise you'll have a 10 year ban against you. Good luck.

[immihelp]

So is there any way I can petition to stay, or is my only hope to wait until my child is old enough to petition for me?

[Ange]

There is no way for you to stay through your son right now. You would have to wait for him to be 21 like kitkat said.

The only other option you have would be to get married. If you happen to fall in love and marry a USC, then you can adjust your status without leaving the country.

If the USCIS find that you have overstayed, they will deport you. Having an american child does not protect you at all.

[Imp]

This is absolutely true. When your child is 21 (and I believe has worked for a certain number of months, but I'm not sure) then he can file for you. Until then, even if you did leave the US< there is no way for you to file.

Also, if you do leave, you will be banned from any sort of re-entry for 10 years. When your son is 21, he could file a waiver to waive what was left of that 10 year ban, but it would be difficult.

At this point your best bet is to stay put and wait. As the others said, if you were to marry a USC, he could file for you immediately.

Good luck.

[Jardinera]

Also, if you do leave, you will be banned from any sort of re-entry for 10 years. When your son is 21, he could file a waiver to waive what was left of that 10 year ban, but it would be difficult.

Good luck.

And actually, the son cannot file a waiver for a parent, only vice versa. So if she leaves at any point she will have a 10-year bar, period, unless she marries a USC and then a USC spouse can file a waiver. Sorry for your situation...

[klaudialaw]

The only thing you can do based on your situation is to apply for a cancellation of removal. Which means that you have to have been in the US for ten years when you apply for cancellation of removal which means that you will be allowed to stay in U.S. Anyway, ask a lawyer to clarify this.

[Daniel Green]

I agree that aside from having your over 21 year old son petition for you, if you aren't afraid of going back to your country (perhaps an asylum case), you have not been the victim of a violent crime (a u visa case), and no country specific statutes apply to you (which is the case, there are no special adjustment of status statutes for Mexico), the only relief you have under current law is cancellation of removal.

To apply for cancellation of removal you must already be in removal proceedings. So you would have to turn yourself in. And I.C.E may very well refuse to initiate proceedings against you.

To qualify for cancellation of removal you have to show that your son will suffer exceptional and extremely unusual hardship. It's like the waiver standard but even higher.

If I have a client who is not in proceedings, I don't recommend her/him to ask for them to begin. Better to use cancellation in a defensive capacity, except for a text book sure winner case, like you are from Pakistan, for example, and you made your child convert from Islam to Christianity (which may carry a stiff criminal sentence, or be threatened by vigilantes), and your child is in a wheel chair, and is blind- that would be a pretty strong case. Cancellation is a tough standard to make. The people that win usually have sympathetic judges and an I.C.E attorney who doesn't appeal judge's decision.

-Dan