What to do? Time is running out. Please help!

[strawpuppy 0]

I am a US citizen by birth but I do not pass the qualifying time needed in the US to allow my over 21 unmarried son to get automatic citizenship.

My other two children were automatically granted US citizenship a few years ago and we have been told this was in error but they are not going to take away their citizenships.

My last son entered into the US on the 9th January 2011 on the Visa Waiver Program (ESTA). We thought he could automatically get his citizenship but I am unable to prove residency in the US of 5 years prior to age 14, and 5 years before the children were born, so they will not grant it.

His passport says he arrived on the 9th January 2011 and must leave the US by April 8th 2011.

I am trying to fill in the I-130 form and got stuck on question #14 (Arrival Departure Record I-94) I have since come to this site and think he must now change the Visa Waiver Program entry into a valid visa?

Time is running out because we were told to apply for the I-130 45 days before he was due to leave. That is tomorrow (22nd February 2011)

What do we do?

Should we just file the I-130 and if so what do we put for question #14,

or, do we apply for a visa to allow him to stay longer before filing I-130.

Any help would be sincerely appreciated.

Mum

[strawpuppy 0]

I have just found this information (Pasted below).

We live in Idaho and I think it means he is OK to apply for Adjustment of Staus? Again, any help appreciated.

"What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat. VWP entrants agree to a no-contest clause, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). You can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit. In the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed."

Reference: Section 3

http://www.avvo.com/legal-guides/ugc/adjustment-of-status-for-immediate-relatives-on-b1b2-visitor-visas

[YuAndDan 153]

Several posts about AOS from VWP lately showing denials. So I would avoid trying to adjust status, VWP is for visiting since there is no visa from which to adjust from, USCIS may take the hardline and deny.

If you are simply filing an I-130 for an IR-2 visa and son will return to home country prior to granted stay expiring this is fine.

If under 21 when you file the I-130, son will be treated as under 21 even if turns 21 while petition is being processed, if over then will take some time to get a visa for an unmarried son/daughter over 21 of US Citizen.

VWP has no I-94, so "None" or "N/A"

[aleful 1,905]

I am a US citizen by birth but I do not pass the qualifying time needed in the US to allow my over 21 unmarried son to get automatic citizenship.

My other two children were automatically granted US citizenship a few years ago and we have been told this was in error but they are not going to take away their citizenships.

My last son entered into the US on the 9th January 2011 on the Visa Waiver Program (ESTA). We thought he could automatically get his citizenship but I am unable to prove residency in the US of 5 years prior to age 14, and 5 years before the children were born, so they will not grant it.

His passport says he arrived on the 9th January 2011 and must leave the US by April 8th 2011.

I am trying to fill in the I-130 form and got stuck on question #14 (Arrival Departure Record I-94) I have since come to this site and think he must now change the Visa Waiver Program entry into a valid visa?

Time is running out because we were told to apply for the I-130 45 days before he was due to leave. That is tomorrow (22nd February 2011)

What do we do?

Should we just file the I-130 and if so what do we put for question #14,

or, do we apply for a visa to allow him to stay longer before filing I-130.

Any help would be sincerely appreciated.

Mum

I don't know who told you that, but children over 21 cannot adjust in country, he needs to leave. when you file it doesn't matter. The petition will take more than 5 years of waiting and he will go through consular processing. He cannot overstay his time in the US.

[strawpuppy 0]

I don't know who told you that, but children over 21 cannot adjust in country, he needs to leave. when you file it doesn't matter. The petition will take more than 5 years of waiting and he will go through consular processing. He cannot overstay his time in the US.

Ouch!

Thank you for replying.

I have just found the information pasted below which seems to state that as long as he is still legal, which he is, and we live in Idaho, which we do, and he is an immediate relative of a US citizen, which he is, we should be able to change his status.

I have posted the info below in case I have read it wrong.

Reference:http://www.visajourney.com/forums/topic/280518-interesting-article/

"What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat.

VWP entrants agree to a "no-contest clause," to wit, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). What this means is that you can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit.

If you are in the 9th circuit, the case precedent of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), provides immediate relative beneficiary VWP entrants protection from removal for overstay after filing for adjustment of status.

However, Momeni v. Chertoff, 521 F.3d 1095, (9th Cir.2008), states that the right to protection from removal for VWP entrants is limited to situations where the applicant files for adjustment of status while their stay is authorized. Momeni states:

Note that the rationale in Freeman was not adopted in other Circuits, however. Thus, VWP entrants may only apply for adjustment of status if they do so while their stay is authorized.

So to summarize, in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed under a 217 order from the District Director without hearing before an Immigration Judge (unless if you have an asylum claim)."

[aleful 1,905]

Ouch!

Thank you for replying.

I have just found the information pasted below which seems to state that as long as he is still legal, which he is, and we live in Idaho, which we do, and he is an immediate relative of a US citizen, which he is, we should be able to change his status.

I have posted the info below in case I have read it wrong.

Reference:http://www.visajourney.com/forums/topic/280518-interesting-article/

"What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat.

VWP entrants agree to a "no-contest clause," to wit, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). What this means is that you can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit.

If you are in the 9th circuit, the case precedent of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), provides immediate relative beneficiary VWP entrants protection from removal for overstay after filing for adjustment of status.

However, Momeni v. Chertoff, 521 F.3d 1095, (9th Cir.2008), states that the right to protection from removal for VWP entrants is limited to situations where the applicant files for adjustment of status while their stay is authorized. Momeni states:

Note that the rationale in Freeman was not adopted in other Circuits, however. Thus, VWP entrants may only apply for adjustment of status if they do so while their stay is authorized.

So to summarize, in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed under a 217 order from the District Director without hearing before an Immigration Judge (unless if you have an asylum claim)."

yes, that might apply to spouses or children under 21 of a USC. If they enter legally to the country, they might be eligible to adjust in country, because they are considered immediate family and they do not have to wait years, only the time it takes to process the forms.

that does not apply to children over 21 of a USC. unless they are covered under a special law, such as the 245i of 2001, children over 21 cannot adjust in country, they go through consular processing. children over 21 are not considered immediate relatives.

I can tell you because my USC mother filed for me and I'm way over 21, divorced, so I was considered unmarried.

My USC mom filed for me in October of 1999, and my last entry to the country on a visitor visa was Dec 18, 2000, so I was able to adjust in country by paying a $1000 fine under the 245i law. If not, I would have gone through consular processing and my mom file a waiver.

He won't need a waiver because he will not overstay. The petition will take more than 5 years.

What he can do, is return and maybe get a student visa and study here, but he must maintain legal status at all times until his priority date becomes current. If not, he must wait in his country.

[YuAndDan 153]

Ouch!

Thank you for replying.

I have just found the information pasted below which seems to state that as long as he is still legal, which he is, and we live in Idaho, which we do, and he is an immediate relative of a US citizen, which he is, we should be able to change his status.

I have posted the info below in case I have read it wrong.

Reference:http://www.visajourney.com/forums/topic/280518-interesting-article/

"What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat.

VWP entrants agree to a "no-contest clause," to wit, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). What this means is that you can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit.

If you are in the 9th circuit, the case precedent of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), provides immediate relative beneficiary VWP entrants protection from removal for overstay after filing for adjustment of status.

However, Momeni v. Chertoff, 521 F.3d 1095, (9th Cir.2008), states that the right to protection from removal for VWP entrants is limited to situations where the applicant files for adjustment of status while their stay is authorized. Momeni states:

Note that the rationale in Freeman was not adopted in other Circuits, however. Thus, VWP entrants may only apply for adjustment of status if they do so while their stay is authorized.

So to summarize, in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed under a 217 order from the District Director without hearing before an Immigration Judge (unless if you have an asylum claim)."

Has to do with IF filing an I-130 would result in a visa being immediately made available upon USCIS approval, under the Unlimited class for example: son/daughter under age 21, spouse of US citizen and parents . Son/Daughter over age 21 of a US citizen does not fall into that class, they fall into the F1 Class currently visa numbers for that class are being issued for petitions filed back in 2005.

What I have seen people do is file the I-130, son/daughter go to home country until the priority date comes up 5 years from now, and then if they are in the USA on a B-Visa at the time the priority date comes up then adjust status, or simply interview for an IR-2 immigrant visa, in the home country.

If were to remain in the USA waiting for the the priority date to come up it will be 5 long years unable to do anything like work.

[Jojo92122 1,924]

Ouch!

Thank you for replying.

I have just found the information pasted below which seems to state that as long as he is still legal, which he is, and we live in Idaho, which we do, and he is an immediate relative of a US citizen, which he is, we should be able to change his status.

I have posted the info below in case I have read it wrong.

Reference:http://www.visajourney.com/forums/topic/280518-interesting-article/

"What about Adjustment of Status for Immediate Relatives on the Visa Waiver Program VWP?

If you entered on the VWP, you may be eligible to adjust just the same as a B1/B2 visitor, subject to the same rules and limitations discussed previously, but there is a caveat.

VWP entrants agree to a "no-contest clause," to wit, to waive any rights to review or appeal an immigration officer's admissibility determination and to waive the right to contest any action for removal except on the basis of an asylum application. INA §217(b). What this means is that you can be subject to removal if you violate terms of your VWP admission, and do not have the opportunity to contest the removal. The affect of this no-contest clause depends on whether you are in the 9th Circuit.

If you are in the 9th circuit, the case precedent of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.2006), provides immediate relative beneficiary VWP entrants protection from removal for overstay after filing for adjustment of status.

However, Momeni v. Chertoff, 521 F.3d 1095, (9th Cir.2008), states that the right to protection from removal for VWP entrants is limited to situations where the applicant files for adjustment of status while their stay is authorized. Momeni states:

Note that the rationale in Freeman was not adopted in other Circuits, however. Thus, VWP entrants may only apply for adjustment of status if they do so while their stay is authorized.

So to summarize, in the 9th Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, it is safe for VWP entrants in authorized stay to apply for adjustment of status. If you are not in the 9th Circuit, and you attempt to adjust status as a VWP entrant, you may potentially be removed under a 217 order from the District Director without hearing before an Immigration Judge (unless if you have an asylum claim)."

The operative works are "MAY BE ELIGIBLE TO ADJUST." This means that the immigrant has to qualify as an Immediate Relative. Immediate Relative is used in its legal context associated with US immigration laws. It is not the common language definition used by you and I.

Think logically for a minute. If it is any relative, then why wait for 10 years in a foreign country? Why not take advantage of the VWP and skip the need to wait.

What you are attempting to do is highly dangerous and could adversly affect your son for two reasons; 1) it's immigration fraud to enter the US on the VWP with the intent to immigrate which could result in a lifetime ban from the US, 2) your son's unlawful presence after his 90 days will count against him and he will not be able to visit the US for years.

GO CONSULT A GOOD IMMIGRATION ATTORNEY. YOU ARE JEOPORDIZING YOUR CHILD'S FUTURE IN THE US. YOU ARE NOT AWARE OF CERTAIN DANGERS.

Edited February 22, 2011 by Jojo92122

[Jojo92122 1,924]

Your over 21 years old son is NOT an Immediate Relative.

http://www.nolo.com/dictionary/immediate-relative-term.html

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=9c8aa6c515083210VgnVCM100000082ca60aRCRD&vgnextchannel=9c8aa6c515083210VgnVCM100000082ca60aRCRD

[Boiler 43,433]

http://travel.state.gov/visa/bulletin/bulletin_1360.html

You can keep an eye on visa dates using the above link. It is not a linear process.

[strawpuppy 0]

Is it possible to change his VWP status to E-2?

I have a fully legitamate licensed business.

Perhaps this would help?

Or can we appeal because his over 21 brother and sister got their citizenship through the local DHS error?

This is getting more like a nightmare every day!

[Boiler 43,433]

You can not change Status on the VWP, to go to E2 he would need to have entered on a B. And then would be landlocked.

A student visa would be a lot less than a E2, unless you have the big bucks and something in mind. In which case you should be taking options with a lawyer.

Appeal on what basis? They made a mistake and should make it again....

[strawpuppy 0]

Oh I so agree!

I will have a look at the student option.

Thanks for your reply