Sticky situation

[ellerich1 0]

Last year october a friend of mine who's mom is an LPR filed AOS for her while in the US. She arrived on a tourist visa in september & they filed concurrently in october before she turned 18. Obviously at the time, they were not aware that such a procedure could only be done by a US citizen. However , the process continued, she did her biometrics & Received her work permit as well. When she had her first interview the IO told her they would reschedule her appointment. This was in january of 2013. In april they had another interview which the IO also rescheduled till today. Now she had another interview today and they said that visa numbers are apparently now current for those under the F2A category for the months of August and september according to her Priority date. So the IO just told them that she would approve the I 130 ( Which she did ) But of course, the 485 would be denied. But all she stated was that they should refile since a visa number is now current, Which leaves them slightly confused. Since the 485 is going to be denied, Doesn't unlawful presence become an adverse factor in refiling ? And what happens to her work permit ? does that immediately become invalid ? ... Where do they go from here ?

The mom is also in the naturalization process, She had an interview done already but received an N-14 & submitted the necessary documents and is now waiting for decision. Should she be approved, Does her becoming a US citizen change anything for the case ?

Edited August 29, 2013 by ellerich1

[Harpa Timsah 13,258]

The person has to be eligible for a GC when they file the I-485. Your friend was not eligible when they filed it last year, because her priority date was not current. No visa number was available for her.

Now that the priority date is current, she is eligible to file a I-485, but she has to file a new one, because the old one is dead and gone, because she was not eligible when she filed it.

Overstay is not forgiven for people in F2A category, but while I-485 is pending she is in a new period of authorized stay.

I think she was pretty lucky, overall. File a new I-485. Her old work permit is also denied, but she can get a new one with the new I-485.

[ellerich1 0]

Thanks very much. So that's all that needs to be done ? Just refile ? Nothing else?

[aaron2020 11,651]

Contact a competent immigration lawyer.

There are consequences to applying to adjust when someone obviously does not qualify.

It's silly to think that someone who should know they don't qualify gets a protective period.

For example: I am in the F3 category. My father files the I-130. I file the I-485. I should know that I can't adjust. Should I get a protective period?