parents

[darkestfaery]

ok here's my question I will give as many details as possible.
My sister is about to become a citizen in two years my parents are from argentina and have entered the US in 2002 legally with tourist visa and have stayed ever after never had any kind of problems with the law or anything. they have all their taxes from the first year they arrived. my questions: Will my parents have to go back to argentina if my sister wants to legalize them? can they do it here? will they have to wait forever like the lawyer told my sister?

[kitkat1]

Your parents have been illegally present in the US for more than 365 days. This requires a waiver. A waiver requires a "qualifying relationship to a USC". Children do not qualify. Your sister can file petitions for them once she becomes a USC, and they can return to Argentina to interview. But they will be denied due to their illegal presence and they will not have a qualifying relationship to be eligible for a waiver.


A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that "the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien," whereas a waiver for criminal history (INA 212(h)) requires it to be established "that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien."

[aleful]

darkest,
Find out with an attorney. I've known people and heard about that they can and have gotten their GC because they entered legally and had their I94. Anyway your sister has to start the process as soon as she can, meanwhile find out with several attorneys.

[Laura]

Yeah, they would need a waiver if they exited the country, but because they entered on a visa, I think they will be able to adjust through your sister and not need to leave the U.S.

You should check with Laurel Scott on her chat - visacentral.net, Wednesdays, 11:00 central time.

[kitkat1]

Overstay when the person entered on a legal visa is generally forgiven IF the person is married to a USC.

In this case, they would still need a waiver. In country waivers follow the same rule -- only spouses or parents are qualifying relatives.

Certainly double check with a qualified attorney -- but it wouldn't make a whole lot of sense to spend the money on the petitions, etc. only to find out that they need a waiver yet would not have the qualifying relationship required.

[aleful]

kitkat,
The pardon is also given to parents. I know parents that entered legally and overstayed their visa, got their GC and did not present a waiver. There are many cases that I've read about that have happened that way, they were able to adjust in the US without a waiver. I know that every case is different and that's why I suggested to seek advise of an attorney to discuss their case and if this is possible for them.
Thank you

[Adriane]

I just asked this a few weeks ago. Klaudialaw, who did this exact thing for her parents, had some great info.

Since your parents entered legally, they will be able to adjust through your sister in the US without filing a waiver. But if they leave the US, they will be banned for 10 years and then your sister can NOT file for them as she is not a qualifying relative for filing a waiver.

Here's a quote from Dan Green, one of the attorneys who posts on this site:

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

Here's the thread: http://immigrate2us.net/forum/showthread.php?t=4886

[kitkat1]

kitkat,
The pardon is also given to parents. I know parents that entered legally and overstayed their visa, got their GC and did not present a waiver. There are many cases that I've read about that have happened that way, they were able to adjust in the US without a waiver. I know that every case is different and that's why I suggested to seek advise of an attorney to discuss their case and if this is possible for them.
Thank you

Waivers are not available to parents for overstay - they are available if the waiver is needed for criminal or misrep. See attorney Laurel Scott's brief quoted below. The cases you've read were most likely these circumstances or people who had a petition filed for them before April 2001 and were able to adjust under 245(i).

Clearly an attorney should always be consulted -- I have never heard of a person who entered on a legal visa being able to adjust after an overstay post-245(i)) without needing a waiver, other than a person married to a US citizen, for which overstay is forgiven.

[aleful]

kitkat,
No, they were post 245i because they did not pay the fine.
Thank you

[kitkat1]

Then perhaps the waivers were needed due to criminal charges. The law is clear - a waiver for prior unlawful presence requires extreme hardship to the citizen/LPR spouse or parent -- hardship to children does not qualify.

[Adriane]

This is complicated. This article, and Dan Green's comments, seem to indicate that no waiver is needed:

http://www.asianjournal.com/?c=170&a=23818

Green Card Eligibility Despite Overstaying or Unauthorized Employment

By Attorneys Robert L. Reeves and Jeff L. Khurgel

INDIVIDUALS in the United States who are not in valid immigration status are often faced with a tough choice - try to get a Green Card and risk alerting immigration authorities as to their presence or stay "under the radar" for the foreseeable future without lawful immigration status.

When deciding whether to proceed with an application for permanent resident status (Green Card), undocumented immigrants must be careful to examine the numerous grounds of inadmissibility. The consequence of being denied will result in deportation proceedings. Among the most common grounds of inadmissibility are overstaying a visa, violating the terms of a visa, unauthorized employment, certain crimes, and lying to obtain an immigration benefit.

Some grounds of inadmissibility may be waived, thus, clearing the road to obtaining a Green Card. Whether a waiver will help in any individual case isfact-specific. Details of the inadmissibility as well as the immigration status and hardship to certain family members of the applicant must be taken into account.

A waiver of inadmissibility for overstaying is not required for individuals who are immediate relatives. Immediate relatives are the parents, minor children or spouses of adult U.S. citizens. These individuals, however, must have entered the U.S. lawfully.

[kitkat1]

I think they very well may able to adjust in the US. My point was, if a waiver was needed, children are not qualifying relatives.

[Daniel Green]

I agree with Adriane and she agrees with me.

If the usc son or daughter is 21 or over, the parent can seek adjustment as a spouse of a usc would.

-Dan