Adjustment of Status based on being the child of a person granted permanent residence

[eternalvisa 0]

I am married and an adult with children. Recently Ive been reading ways to file an I-485 and I came across something very interesting. First of all some background: my father went to USA 15-20 years back and when he had an immigrant visa available, he filed for an adjustment of status and got a green card. For the last 5-6 years he has been a US citizen. Now, this is what i came across in the I-485 : -

"

You may apply to adjust your status if any of the following apply to you:

....

Based on being the spouse or child of another adjustment applicant or of a person granted permanent residence. You may apply to adjust status if you are the spouse or child of another adjustment applicant, or of a lawful permanent resident, if the relationship existed when that person was admitted as a permanent resident in an immigrant category, which allows derivative status for spouses and children. "

My father is a previous adjustment applicant and later was granted permanent residence. I was born long before he went to USA so the relationship did exist when he went to USA. Also, I don't know if this would help, but when he went to USA, I was living in a different state with my husband because he was posted there on a diplomatic mission (Point being I was in the country too when he filed)

My question is: -

1) Based on that, can I apply for an adjustment of status?(If I cant; why not?)

2) If I can apply due to that, can I also adjust the status of my children with me?

3) If my children cant be adjusted with me, can I at least apply for an AOS only for my self?

I appreciate your advice/help

Edited June 21, 2009 by eternalvisa

[Anh map 2,098]

As an adult child the wait will be long. Your dad would apply for you and if approved you are in line for when a visa becomes available. Do some reading here at the USCIS website -> http://www.uscis.gov/files/article/A1eng.pdf

Edited June 22, 2009 by Anh map

[JimVaPhuong 4,863]

I am married and an adult with children. Recently Ive been reading ways to file an I-485 and I came across something very interesting. First of all some background: my father went to USA 15-20 years back and when he had an immigrant visa available, he filed for an adjustment of status and got a green card. For the last 5-6 years he has been a US citizen. Now, this is what i came across in the I-485 : -

"

You may apply to adjust your status if any of the following apply to you:

....

Based on being the spouse or child of another adjustment applicant or of a person granted permanent residence. You may apply to adjust status if you are the spouse or child of another adjustment applicant, or of a lawful permanent resident, if the relationship existed when that person was admitted as a permanent resident in an immigrant category, which allows derivative status for spouses and children. "

My father is a previous adjustment applicant and later was granted permanent residence. I was born long before he went to USA so the relationship did exist when he went to USA. Also, I don't know if this would help, but when he went to USA, I was living in a different state with my husband because he was posted there on a diplomatic mission (Point being I was in the country too when he filed)

My question is: -

1) Based on that, can I apply for an adjustment of status?(If I cant; why not?)

2) If I can apply due to that, can I also adjust the status of my children with me?

3) If my children cant be adjusted with me, can I at least apply for an AOS only for my self?

I appreciate your advice/help

You say you were living in a different state with your husband when your father entered the USA on an immigrant visa. He applied for AOS, got his green card, and then got his citizenship 5 or 6 years ago. Correct so far?

Ok, you were not eligible as a derivative at the time he entered the US because you were already married. An LPR cannot petition for married children. Even if you had been eligible at that time, that would not necessarily extend your eligibility to today. You must be eligible when the petition is submitted. The text you cited only basically states that an LPR can only petition for an unmarried child if the parent/child relationship existed before they became an LPR. In other words, it excludes children born or adopted after the LPR gained status.

Once your father became a citizen then he became eligible to petition for you. He cannot petition for your husband or children, but you can. Once your visa number comes up, you can apply for a visa for your husband and children, provided the children are under 21 years old and not married. You'll all get your visas at the same time.

Because you are married you are not eligible for an Immediate Relative (IR) visa. You are eligible for a Family Third Preference (F3) visa. The annual quota for this type of visa is 23,400. The current priority date for F3 visas is October 22, 2000 for an immigrant from Pakistan. This means you can expect to wait a little under 9 years if your father applies now.

[eternalvisa 0]

Thank You so much for your detailed reply. I totally understand now.

[TayRivers 4]

Thank You so much for your detailed reply. I totally understand now.

The answer is the same as it was on Friday and Saturday and in your post from yesterday. You can ask the question a 1000 diffrent ways but the answer is still the same.

YOU CAN NOT REMAIN IN THE USA AND FILE FOR AOS. YOU NEED TO RETURN HOME AND WAIT FOR A VISA NUMBER TO BECOME AVAILABLE TO YOU.

[Ed+Cindy 1]

I thought you were interested in the DV lottery???

[readymade 0]

<!--quoteo(post=3050074:date=Jun 22 2009, 03:10 AM:name=eternalvisa)--><div class='quotetop'>QUOTE (eternalvisa @ Jun 22 2009, 03:10 AM) <a href="index.php?act=findpost&pid=3050074"><{POST_SNAPBACK}></a></div><div class='quotemain'><!--quotec-->Thank You so much for your detailed reply. I totally understand now.<!--QuoteEnd--></div><!--QuoteEEnd-->

The answer is the same as it was on Friday and Saturday and in your post from yesterday. You can ask the question a 1000 diffrent ways but the answer is still the same.

YOU CAN NOT REMAIN IN THE USA AND FILE FOR AOS. YOU NEED TO RETURN HOME AND WAIT FOR A VISA NUMBER TO BECOME AVAILABLE TO YOU.

What if you are legally in the US? You still cannot apply to have AOS?

[JimVaPhuong 4,863]

What if you are legally in the US? You still cannot apply to have AOS?

There are three requirements to adjust status:

1. You must apply.

2. You must be eligible and not inadmissible.

3. There must be an immigrant visa number immediately available to you.

Number 1 is easy.

Number 2 catches some people. Being eligible means there cannot be any statutory bar to your adjustment of status (for example, the two year home residency requirement for some J visas). Not being inadmissible means the usual stuff - no serious crimes, no bans from the US for immigration violations, etc.

Number 3 was one of the OP's problems. A US citizen can sponsor a married adult son or daughter, but a visa number would not be available to them until their priority date became current. Right now, FB3 visa numbers are available for petitions with a priority date of October 1992. Assuming the oversubscription rate remains the same, if a US citizen filed an I-130 petition for a married son or daughter today then the son or daughter would have to wait 18 years before an immigrant visa number would be available to them, and they could adjust status.

Being in the US legally is an eligibility requirement for most people to adjust status. The exceptions are immediate relatives of US citizens. For immigration purposes, an immediate relative is a spouse, an unmarried child under 21 years of age, or a parent. A married son or daughter is not an immediate relative under immigration law, and they could not adjust status unless they were lawfully present. The OP would not have been able to hang out illegally in the US for 18 years and wait for a visa number to become available.

Edited October 20, 2010 by JimVaPhuong