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Adjusting status question

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I am an American Citizen. About a year ago before I married my wife, she was in asylum status for 1 year, for which she would have been able to apply to adjust her status to that of a permanent resident. However, I decided to file for her adjustment of status based on our marriage. Long story short... she now has her green card.

At the time before I applied for her adjustment of status, she had petitioned for her 6 year old son as a derivative asylee living in Kenya. Shortly after we had been married and after she had received her green card, I decided to petition for my now stepson as an immediate relative living abroad in Kenya as we felt that we would now increase our chances of getting him to America faster. However, the first petition submitted by my wife was approved first and allowed him to recently immigrate to the U.S. as an derivative asylee on May 7 2011. In late April, we learned that the petition I had filed for him (I130) was also approved and that I can begin the process of communicating with the consular in Kenya to proceed processing his immigrant visa abroad. Needless to say, that we no longer need to do that since he is already now currently in the U.S.

We would like to adjust our son’s status to that of a permanent resident as soon as possible. Here is the problem. The first option is that his current status is that of an Asylee and he would have to wait 1 year in order to apply for his adjustment of status (I485), We don’t want to wait a year if we can avoid the wait. The second option (if it is an option?) is that I may be able to submit the a copy of the I130 as an attachment to the I485 package and apply for his adjustment of status immediately as an “Immediate Relative” and since it would be a totally different case?

I have called the National Visa Center (NVC) and they say it shouldn’t be a problem for them to switch the processing back to US instead of Kenya after the I485 is approved. I then spoke to USCIS and the lady told me that for our particular situation, it would not be possible to adjust it right now, and we would have to wait for a year. She took a really long time to research on the phone and drew a conclusion that our son does not technically fall under the category of “entering legally” since he came on asylee status and not a visa… I’m not sure that she is entirely accurate since I was able to apply for my wife’s adjustment completely separate from her applying via her asylum status.

Is this second option doable?

Thanks for taking your time to read this. I know it’s a little long, but our situation is really complicated.

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An asylum applicant is paroled into the US. It's not the same as being admitted, but it IS a lawful entry. INA 245 allows an eligible alien to adjust status if they were inspected and admitted OR paroled into the US.

I think the USCIS rep was wrong, but I could be missing something.


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