Child overstaying B2 visa to study?

[newacct 688]

A relative who has PR status has applied to bring her spouse and son (as a derivative visa) to the US. But since the process takes about 2 years,

Is this her biological son? How did she become a permanent resident?

[NikLR 13,220]

They won't. That is only for children who came on F1 student visas.

No it's not. There was another case on the forum where the child wasn't allowed to immigrate because they had attended public school on a B2 visa. (I believe the mother and child were residing in Canada and the sister allowed her sibling attend school.) Because the child had attended public school but nothing was paid towards said schooling, the child was denied an immigrant visa and had their B2 visa cancelled. (I do not believe the family were Canadians, merely living there.) The federal government had stated the schooling debt needed to be paid before the child could immigrate.

[Unlockable 7,306]

Here is the thread that NLR is referring to.

http://www.visajourney.com/forums/topic/589225-please-help-mom-visa-refused-what-to-do-next-merged/?hl=%20ignorant

And I agree that it is extremely stupid for your relative to abuse the system like that.

Thank her for contributing to the difficulty of foreigners seeking tourist visas.

[newacct 688]

No it's not. There was another case on the forum where the child wasn't allowed to immigrate because they had attended public school on a B2 visa. (I believe the mother and child were residing in Canada and the sister allowed her sibling attend school.) Because the child had attended public school but nothing was paid towards said schooling, the child was denied an immigrant visa and had their B2 visa cancelled. (I do not believe the family were Canadians, merely living there.) The federal government had stated the schooling debt needed to be paid before the child could immigrate.

Source?

I don't see any law which allows them to deny a visa for that reason. Plus lots of illegal immigrant children who immigrate later spent years attending public school without having this be an issue for immigration.

Edited August 8, 2016 by newacct

[newacct 688]

Here is the thread that NLR is referring to.

http://www.visajourney.com/forums/topic/589225-please-help-mom-visa-refused-what-to-do-next-merged/?hl=%20ignorant

And I agree that it is extremely stupid for your relative to abuse the system like that.

Thank her for contributing to the difficulty of foreigners seeking tourist visas.

And in that post it never said they were denied immigrant visa's for the child's not having paid the school.

[NikLR 13,220]

Well I misremembered, but there was a denial of the mother's visa due to the child's use of public school.

(double post edit)

Edited August 9, 2016 by NLR

[belinda63 2,981]

I also think there was another poster who was labeled as a human smuggler because they brought a child here and allowed them to overstay and attend school.

[Anitafeliz 1,133]

I also think there was another poster who was labeled as a human smuggler because they brought a child here and allowed them to overstay and attend school.

A parent cant smuggle their child. Kidnapp possibly but dad would have to charge her and they want to move here.

[Jeniafrench 8]

He can probably apply to a private school and get a proper student visa. These kinds of schools are not cheap but if it's that important to go to school in the US vs wherever the kid is from...

[newacct 688]

A parent cant smuggle their child. Kidnapp possibly but dad would have to charge her and they want to move here.

It's called smuggling, but it's defined as any alien who encourages or helps another alien to try to enter the US in violation of law, and it can definitely be family members, and in fact the immigrant waiver for this ban is only available if the alien who is "smuggled" is the "smuggler"'s parent, child, or spouse.

[Anitafeliz 1,133]

It's called smuggling, but it's defined as any alien who encourages or helps another alien to try to enter the US in violation of law, and it can definitely be family members, and in fact the immigrant waiver for this ban is only available if the alien who is "smuggled" is the "smuggler"'s parent, child, or spouse.

Since childs not illegal. no one has been smuggled yet. Edited August 9, 2016 by Anitafeliz

[Anitafeliz 1,133]

https://www.ice.gov/factsheets/human-trafficking

Once illegal its gonna be a smuggling

[EM_Vandaveer 2,370]

https://www.ice.gov/factsheets/human-trafficking

Once illegal its gonna be a smuggling

Technically, not if the child is already here. Already here = no entering needed. Entering is part of the definition for smuggling.

[Anitafeliz 1,133]

Ok well.....now i know.

But everyones jumping the gun as childs still in legal standing and has not attended school yet.

I hope OP advices the friend correctly and lets hope this person acts correctly.

THIS HERE IS PRIME EXAMPLE. Of how to abuse the system and ruin it for others if and when all the possible illegal activities discussed happen.

This is why some countries become high fraud.

I def don't understand why anyone can go ahead and do these things and drag along a child.

If you want to commit crimes and you involve minors. JAIL!!

Edited August 9, 2016 by Anitafeliz

[Villanelle 4,121]

Back to topic:

IF the child stays the child MUST go to school. The United States has compulsory school attendance laws. All children between the ages of five to sixteen are required to attend school in most states.

Please keep in mind a B visa holder can not go to school. That violates the terms of the visa. So if you are on a B you are not under the compulsory school attendance provision. However if you switch from a B to "undocumented" because of overstay OR simply because you "abandon it" by moving your residence to the US where you are no longer a visitor but a resident then you must go to school. There is no formal process for changing from B to undocumented. I mean you dont fill out a form or anything. You just do it.

So again as long as the child is on a B then they are not eligible for school. Once they abandon the B by changing residences or overstaying then they MUST go.

The federal law mentioned previously is the following:

The U.S. Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982), invalidated a Texas law authorizing school districts to bar undocumented immigrant students from public elementary and secondary schools. The Court stated that undocumented immigrant students have the same right to free public education as U.S. citizens and legal permanent residents under the Fourteenth Amendment.21 Undocumented immigrant students are obligated, as are all other students, to attend school until they reach the age mandated by state law. Further, public schools and school personnel are prohibited under Plyler from adopting policies or taking actions that would deny student access to education based on their immigration status.

Denial of K-12 education: In spite of the landmark Supreme Court decision in Plyler v. Doe, guaranteeing the right

to K-12 public education, many school systems in the country deny access to undocumented immigrant students as standard

practice, either due to misinterpretation of this law and/oranti-immigrant sentiments

So it may not be that easy to get the child enrolled.

As for another point brought up: The Family Education Rights and Privacy Act (FERPA)(1974) prohibits schools from providing any outside agency, including the Department of Homeland Security (DHS) or U.S. Citizenship and Immigration Services (USCIS), with any information from a student’s school file that would expose their immigration status without first receiving permission from the parents. The only exception is when an agency secures a court order (subpoena)

As to repayment:

Under current federal law, students with F-1 visas are required to pay the secondary schools the full, unsubsidized cost of education

F-1 visa is a non-immigrant visa issued to a legal foreign student who is coming to the U.S to purse full-time studies in a U.S. academic institution Please see chart on page 15 for more details.

http://www.e4fc.org/images/Access_to_Education_Guide_Eng1_LR.pdf

Furthermore:

It has never been Service policy that any receipt of services or benefits paid for in whole or in part from public funds renders an alien a public charge, or indicates that the alien is likely to become a public charge. The nature of the public program must be considered. For instance, attending public schools, taking advantage of school lunch or other supplemental nutrition programs, or receiving emergency medical care would not make an alien inadmissible as a public charge, despite the use of public funds .

https://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-54070/0-0-0-54088/0-0-0-55744/0-0-0-55805.html

So the question remains on what to do... No one on VJ is going to advise that someone intentionally overstays their B visa and becomes undocumented. Nor that they use the B visa to enter or already have entered and 'change their mind' and decide hey I like it here Im going to become a resident (undocumented). In this case it is the parent deciding for the child. As stated if you have a path to residency (which the child does) then it is recommended you follow that path.

However there is NO PENALTY to the child. It will not hurt the immigration process of obtaining a GC through the mother. It can cause issues for the mother though in terms of how USCIS views her moral character as one can speculate since she is responsible for decisions made in regards to the child she intentionally violated the terms of the B visa on his behalf.