I-130/I-485

[jenkatx 52]

My friend has a bit of a complicated situation. She married her husband in the US in 2012. He was brought here as a child in 1991 illegally, his father filed for him in 2003 and he was had been a perm resident since that time. In 2014 his father was deported. Husband went to USCIS to have something on his work card corrected and was told he no longer had status as his father was deported.

I want to make sure we're filing the correct forms; I-130 and G-325a. Can he also do the I-485? The instructions can be construed both ways as he is not here legally through a technicality or no fault of his own. Also, do we need an I-864?

As always, THANK YOU, you guys are awesome!

[Transborderwife 4,666]

He cannot aos in country if he entered illegally. Plus he needs proof of his entry

[Dohan 133]

If he had his green card it makes NO sense that they took it away. Once he has the green card, it does not matter what the status of the petitioner is. How did his father file for him in 2003, was the father ever a USC? Please provide more details.

[Hypnos 6,576]

More details needed.

1) How did he obtain his original green card.

2) How did he enter the US (EWI, overstay a B-2, etc.).

3) What paperwork has already been filed previously.

[Boiler 43,401]

Agree he would not lose his status just because his father did, was his father deported due to criminal history?

[NigeriaorBust 4,087]

Did he enter with family on a visitors visa and then did the father make an asylum claim ?

[jenkatx 52]

He was brought from Mexico illegally at 12 years of age, he has not been back since. His father filed for him 12 years later, but neither were ever citizens. His father was deported due to committing a crime and has since disappeared in Mexico. He has no paperwork from his previous filing, no idea what attorney his father used, just his expired green card. He was here legally for 11 years, and when he went in to have his name fixed on his card they told him he was out of status because of his father being deported. He hasn't received any notice of deportation or adverse action, just what they verbally told him at the local USCIS office in 2014; which would coincide with his 10 year card was expiring.

Because of the current situation in the area of Mexico where he is from he can not return to wait this out, his father and several of his family members have already disappeared from that area.

I know we need I-130, but am I reading correctly that you can file an I-485 if your current visa has expired, but you're the spouse and parent of citizens?

[jenkatx 52]

Did he enter with family on a visitors visa and then did the father make an asylum claim ?

Hello Lady, longest time! I pray you are well. He entered illegally, and we are not sure how his father filed, just that he had a 10 year card that expired in 2014.

[Hypnos 6,576]

You need a legal entry to adjust from (under most circumstances) to file an I-485.

It's still far from clear how he obtained his green card, or why he lost it.

He should consult with an experienced immigration attorney, giving them the details that we are not getting here.

[Boiler 43,401]

Green Card may expire, the status does not.

Probably important information lost in translation,

[NigeriaorBust 4,087]

Hello Lady, longest time! I pray you are well. He entered illegally, and we are not sure how his father filed, just that he had a 10 year card that expired in 2014.

We are doing fine. DO you know why the father got deported ?

[newacct 688]

I am also confused by this. If his father was deported for something he did after becoming a permanent resident, it should not have any affect on him (the son) at all. If, on this other hand, his father was deported because he committed fraud in getting his green card (e.g. lied about something or failed to disclose something that would have prevented him from getting green card), and he (the son) got the green card as a derivative, then I can imagine maybe it could affect his son also (since if the father was not eligible, the son was also not eligible, no matter how innocent the son was). But if that were the case, then I think they would also start removal proceedings against the son. (Could he have been put into removal proceedings without his knowledge?) If they don't deport the son, they have no business saying that the son isn't a permanent resident; they have no authority to unilaterally take away his permanent residency without any proceedings. (And if they do start removal proceedings against the son, he could apply for Cancellation of Removal, based on the number of years he's been living in the US.) I would try to get any information you can on his father's removal, if possible.

It doesn't seem possible from what you've said that he lost his permanent residency, so I wouldn't assume that. Filing for Adjustment of Status requires, for one, that he not be a permanent resident, so I don't think it makes sense in this situation without figuring how on what basis he supposedly lost his permanent residency. Also, what's the rush? He's in the US, is not being deported, and has no official documentation that he is not a permanent resident. If he does get put into removal proceedings, that will at least clarify the situation, and also allow him to apply for Cancellation of Removal. Also, if it turns out that he indeed does not have permanent residency anymore, Adjustment of Status can always be filed later, even in removal proceedings (with the immigration judge), so there's not much to lose by trying to figure it out first. Since his green card is expired, one thing he can do is apply to renew it (which he would have to do anyway if he did not lose permanent residency) and that will give you a pretty good answer on this.

p.s. the three-character classification code on his green card will tell how he got it, but it doesn't really help answer questions about whether he's still a permanent resident

Edited February 14, 2016 by newacct

[Dohan 133]

It seems his father might have done something shady to get him a greencard because the way his father entered and the way he was brought here his father could not have "petitioned" for him. Maybe he had DACA? But that also does not seem right because I doubt it would be taken away.

My hypothesis is, that his father got him papers in a roundabout way and that is why the green card was taken away. Please don't be upset for me suggesting this but I have seen many cases like this, it is not his fault, it's because some lawyer probably made it seem to his parents that this was a solution.

Her husband might be eligible for something called cancellation of removal because he has been here for over 10 years. It is very complicated and the only way to obtain this is through immigration court so you definitely need legal representation.

When they get a lawyer the first thing to do is get a FOIA, this will help the attorney see if and what immigration knows about the original filing. It would help immensely if they still have the A#.

I truly hope you guys figure this out.