Filing I-130 (serious help!)

[trekker80 0]

Hello. I need help. A very close friend of mine is from Brazil, he

came to the country with his mother and brother when he was 15 years

old, back in 1998. His mother filed an I-485 application for him at

that time, to get his permanent residence.

His I-485 was denied, because he was arrested back in 2002, for

carrying a fake photo id to sneak into a 21+ year old club. The

charges were eventually dropped. The UCSIS found out about the

arrest, and requested proof that the charges were dismissed (dispoition

letter, i believe). He experienced major delays getting the requested

documentation, and too much time lapsed, and thats when the i-485 got

denied.

He hired a lawyer, who said he'd take care of it by ... by requesting a motion to reopen.

So my friend stopped following up, and let the lawyer handle

everything... And now here we are 3 years later, we find out that

this I-485 application was never reopened!!

So we saw a new lawyer today, and she said, his mother would have to

file an I-130 form, and basically start from scratch. Now for my

question...

I looked into the I-130 and I understand its purpose. Our new Lawyer

says he is now considered "out of status" (illegal alien!). Because of this can his mother

successfully file an I-130, while my friend is still in the country,nunder this illegal alien status?

Have you heard of someone (a relative) filing a i-130 for an individual who

is still in the country but classified as "out of status"?

All of his family is here, he's been in this country for 10 years...

For him to go back to Brazil, not knowing anyone, to be alone, is

just unimaginable!

We plan on meeting with our new lawyer next week, but in the mean time,

I thought I'd researcht this as much as I can.

If anyone is familiar the the I-130, or this process, I welcome your insight. Thank you!!

[RaTBoX 1]

His mother can certainly file an I-130 for him successfully. Whether or not it will be approved is another matter. Your immigration lawyer should have informed what is and what is not possible to do in this situation. I recommend further consultation with the lawyer as there may be other aspects to this case we do not know about.

Edited April 22, 2008 by RaTBoX

[eau_xplain 2]

Please also note that filing the I-130 will not give your friend any legal status in the US. He will still be incurring overstay. If his I-130 is approved, he won't be able to apply for AOS while in the country. He will ultimately have to go home and continue his visa process from there (and file a waiver for the overstay).

The only way an overstay is forgiven is if the adjustment of status is done by virtue of marriage to a USC.