Green Card for My brother

[Spartak 1]

Hey Everyone. I have a questions. My brother is 19 years old and living in the USA for 10 years. He got approved with Deferred Action for Childhood Arrivals (DACA). Im US Citizen. My mother just got her Green Card and she can apply for him. How long its going to take for him to get his Green Card thru my Mom? Or its will be faster if i will apply for him? Thank you.

[NancyNguyen 1,657]

Sorry but no GC path for DACA through Mother or siblings.

Was he inspected when he first came to the US? If yes, AOS through marriage seems to be his only option to obtain GC.

[Spartak 1]

Sorry but no GC path for DACA through Mother or siblings.

Was he inspected when he first came to the US? If yes, AOS through marriage seems to be his only option to obtain GC.

Yes , he came To the USA with Visa. He overstayed. He was only 9 years old.

Are you sure through marriage is only option?

[NancyNguyen 1,657]

Because he was inspected, admitted when he first came here, he is okay to AOS based on being immediate relative of USC. Eligible immediate relatives include the U.S. citizen’s:

• Spouse
• Unmarried child under the age of 21
• Parent (if the U.S. citizen is over the age of 21)

But your Mom is not US citizen, so there is no go.

[Penguin_ie 5,984]

**** Moving from AOS from Family Visa forum to DACA forum ******

[Beginning777 6]

Your mother as a Permanent Resident, can petition, for your brother, (her,son) with DACA, or not. I'm aware of one case, who was approved.

[Boiler 43,388]

He has an overstay to adjust status he has to be in status except for IR's when it is 'forgiven'.

[EM_Vandaveer 2,364]

So basically they have to wait until their mom becomes USC, then she'll be able to file for him, correct?

[Beginning777 6]

Not to my knowledge. She can petition him.

Not to my knowledge. She can petition him. And It's faster through her.

[EM_Vandaveer 2,364]

For Permanent Residents, though when they petition for their family members, I thought the family members have to be in status here (or live abroad at the time with no previous overstays in the US). Does having DACA count as being in status? Or does he have to get AP, leave and come back in order to have a status to adjust FROM?

[Boiler 43,388]

DACA is not status in itself.

Edited July 19, 2015 by Boiler

[newacct 688]

First of all, he can never be in the Immediate Relative category when petitioned by you or your mom. Immediate Relatives only include a spouse, under-21 child, or parent of a US citizen, and by the time your mom becomes a US citizen, he will be over 21.

Since he is not in the Immediate Relative category, and he is out of status, he is not eligible for Adjustment of Status. So the alternative for him is Consular Processing outside the US.

With Consular Processing, one issue is whether he will trigger an unlawful presence ban upon leaving the US. One does not accrue unlawful presence while under 18 for the purposes of the 9B unlawful presence ban. One also does not accrue unlawful presence while under DACA. You did not say when he got DACA. But if he got DACA before he was 18.5, and he maintains DACA all the way until he leaves the US, then he will have accrued less than 180 days of unlawful presence before leaving, and thus he will not have an unlawful presence ban upon leaving. In this case, he can just stay in the US on DACA for the several years until a visa number is available for his category, and then leave to do the Consular Processing and come back quickly.

If you petition him it will be in the F4 category (sibling of US citizen), which currently has a wait of almost 13 years for most countries (longer for Mexico and Philippines). If your mom petitions him it will be in the F2A category (unmarried under-21 child of permanent resident), which currently has a wait of 1-2 years; but there's a chance he might age out into the F2B category (unmarried over-21 child of permanent resident), which currently has a wait of almost 7 years for most countries (longer for Mexico and Philippines). For your mom's petition to work, he must remain unmarried, as there is no category for married child of permanent resident.

Edited July 19, 2015 by newacct

[EM_Vandaveer 2,364]

Boiler, I suspected that much. However, getting an AP, leaving and coming back "creates" a status one can adjust from, correct? (Taking into account newacct's excellent post about possible overstay and consequent ban, this may not be the way to go.)

[Boiler 43,388]

Boiler, I suspected that much. However, getting an AP, leaving and coming back "creates" a status one can adjust from, correct? (Taking into account newacct's excellent post about possible overstay and consequent ban, this may not be the way to go.)

He was inspected on original entry so can adjust through an IR, nothing changes for him otherwise, no need to go Dacabilly.

[newacct 688]

Boiler, I suspected that much. However, getting an AP, leaving and coming back "creates" a status one can adjust from, correct? (Taking into account newacct's excellent post about possible overstay and consequent ban, this may not be the way to go.)

No. AP does not create status. It only creates creates legal entry. Which is fine for people in the IR category. But if he is not in the IR category, then status is also needed.