Advice/Opinions needed - B-2 Overstay issue

[Dobolo 9]

Hi everyone,

This is not exactly an adjustment case per se. A situation occurred with a friend of mine and we discussed it but I dont know what happens next (or what will happen?)

So my friend's (a guy) sister came to the US on a tourist visa and announced that she was pregnant and didnt want to go back to their home country. (My friend is here on a H1-B). This of course caught the guy by surprise as the intent of this visit was a holiday and to scout for colleges/schools that she could go to for the next year. So to cut a long story short (after many fights and arguments that she should go back home to avoid overstaying), she overstayed her visa, had the baby using state benefits and is here in the states. We have had several to and fro discussions (my friend and I) regarding what happens next. Will she be in any trouble? What are the cons regarding her staying here with an expired visa, out of status etc?

What are the long term prospects if she's here (without adjusting via marriage to a US citizen & her kid filing by the age or 18 or 21) for her? Will her brother get into any trouble for "assisting" someone here illegally?

I know that people say as long as you stay under the radar there wont be a problem but laws can change at anytime (the Obama's uncles case has brought this to the limelight once more) and we are really just disturbed. I also know that if she meets an American and marries then this is no problem (she is adamant she doesnt want to do this as she is in love with the "baby daddy" back home and they are planning his coming here as well...it's not that we want her to get into anything arranged for the sake of that as well.)

Any tips, advice, suggestions and opinions would be welcome. Thanks

[payxibka 10,045]

i don't think anyone will give you advice on how she can remain here illegally

[JimVaPhuong 4,863]

If she has any encounters with DHS then she could be taken into custody and deported. Obama's executive order regarding deportation doesn't change the immigration law, and it could be rescinded any time. Unless she's related to the President then she shouldn't think she's going to get the same consideration as Obama's aunt and uncle.

Her child won't be able to petition for her until the child is 21 years old. That's a long time to "stay under the radar". She can't work legally, and she's not eligible for most government benefits. All it would take is one minor violation of the law for her to be caught and deported.

If her brother is a US citizen then he could petition for her. That would take less time (unless she's from the Philippines), but she wouldn't be able to adjust status once the priority date was current because she wouldn't have current legal non-immigrant status - something she would need to adjust status unless she's adjusting as an immediate relative (spouse, parent, or child) of a US citizen. If she went back to her home country to apply for the visa then she'd get a 10 year ban for the overstay, and her brother isn't a qualifying relative for an I-601 waiver.

If she's hoping for some kind of immigration reform that might benefit her then she shouldn't hold her breath. The mood in the country right now is decidedly anti-immigrant, and that isn't likely to change unless the economy makes a serious rebound, which nobody is predicting for a long time.

She can't petition for her baby's father without first getting legal status herself. At this point, it looks like she's going to have to wait in the US for a couple of decades before that's going to happen. If she leaves the US to visit him then she won't be coming back for a long time.

What she's planning is seriously stupid. Why would anyone essentially put their life on hold for two decades? Does she seriously think her boyfriend is going to wait that long for her?

[Dobolo 9]

@payxibka I wasnt asking for advice for her to stay here illegally. Shes already here - I am asking whats the best way to proceed (if theres any).

@Jim, thanks for your insightful thoughts. My friend is on a H1-B, should probably get a green card in few year so a US citizenship is still some years down the road.

The sense I get is that she wants the baby daddy to come here on a tourist visa (or maybe student visa) and then end up in the same situation she is in - but I hope the guy is smart enough to see the dilemma he will be getting into.

Jim please what does this statement mean " but she wouldn't be able to adjust status once the priority date was current because she wouldn't have current legal non-immigrant status - something she would need to adjust status unless she's adjusting as an immediate relative (spouse, parent, or child) of a US citizen." It's a bit confusing for me to understand...

Thanks

[NigeriaorBust 4,087]

If someone happens to be in the US legally when their petition becomes current they are usually allowed to adust in the US. This woman isn't legal so even if a petition was available today she couldn't. Having a USC baby doesn't mean you get any status / rights. The brother could also be in trouble if they find he is helping her and they might both face deportation ( some officers are pretty much jerks about deport them all and sort it out later attitudes and even if he gets picked up with her as aiding her it will mean a lot of money to striaghten out things ) The best thing for her would be to leave and wait out the child becoming 21. Not that she will agree that is the best path. But being unable to work or pretty much do anything else , it is hard to believe that it is a better life than "back home" If the brother is harboring her it looks like he may soon be harboring the baby daddy and working his hinney off taking care of the extended family that can't work.

[Brother Hesekiel 2,236]

Jim please what does this statement mean " but she wouldn't be able to adjust status once the priority date was current because she wouldn't have current legal non-immigrant status - something she would need to adjust status unless she's adjusting as an immediate relative (spouse, parent, or child) of a US citizen." It's a bit confusing for me to understand...

Thanks

If an immediate relative of a U.S. citizen is in the U.S., they can file for Adjustment of Status. At that point "unlawful presence" (a.k.a. as overstay) is not being made an issue of. So if your friend moves up from H1-B to Green Card and 5 years later to U.S. citizen, he is eligible to file an I-130 petition for his sister. However, since his sister is not an immediate relative of his (only parents, spouses and children are), the sister could not be out of status when filing for AOS.

Speaking of which, getting to the AOS stage for a U.S. citizen's sibling takes currently about 12 to 23 years (F4 preference category), so when that day comes, she needs to be either in status or in her country of residence. If she overstays, she will have to leave the U.S at which time she will trigger the 3 or 10 year bar. In short, the path for her to becoming legal through her brother is not only many years away, but if it comes, she needs to be outside the U.S. and the bar needs to have been served.

Her plan is just silly.

[ceadsearc 516]

She has no real prospects. Her brother won't be able to file for her, even if he becomes a USC, if she is out of status or has a ban in place, and even if that wasn't the case the wait is long. Her child can't file for her until they are 21. She can't get a job legally, can't change to another visa, nothing. Oh, and she may run into problems down the line as well for using government assistance. Her only option unless she wants to try to live under the radar and hope she doesn't get caught and deported is to return to her country, live there, and wait until her child turns 21 to petition her.

[payxibka 10,045]

@payxibka I wasnt asking for advice for her to stay here illegally. Shes already here - I am asking whats the best way to proceed (if theres any).

but there lies the rub... she would need to remain illegally for decades before she could have her status legalized...

[ceadsearc 516]

but there lies the rub... she would need to remain illegally for decades before she could have her status legalized...

I think the answer to the OP's question is "there is no way for her to remain legally, see above for how she can leave the country and have a chance at becoming legal years down the line."

[payxibka 10,045]

I think the answer to the OP's question is "there is no way for her to remain legally, see above for how she can leave the country and have a chance at becoming legal years down the line."

not true, her son is a USC... once he attains the age of 21 he could petition for her, but since he is an infant, that would require her to stay under the radar for more than two decades

Edited September 17, 2011 by payxibka

[ceadsearc 516]

not true, her son is a USC... once he attains the age of 21 he could petition for her, but since he is an infant, that would require her to stay under the radar for more than two decades

It is true, because that would not be 'staying here legally,' that would be 'staying here ILLEGALLY.' There is no LEGAL way for her to remain in the country at this point.

[desmond&molly 5]

How long has she overstayed? Because the bans are determined by that. From the moment her I-94 expired if she leaves before 180 days she only has 3 years ban versus 10 years ban if she's been out of status for 181+ days. If she leaves now she can get through the ban and then have more options to live in the US and legally. Like being petitioned by her son or brother, student or work visa or maybe she falls in love with someone else that's a US citizen and willing to petition for her. I think the longer she waits the more she and her son will assimilate making a possible deportation that much harder. Maybe someone else knows but what are the sonsequences of being deported? Aside from the bans does itmean you're barred from immigration benefits or something?

I think she should seek a lawyer that can explain options and help her see what her brother tried to explain to her.