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Raffaella

OUT OF STATUS APPLIES FOR GREENCARD THROUGH PARENT

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My cousin who's visitor visa expired 7 years ago and he would like to apply for a green card through his father who is a permanent resident. I have heard that this can be done but am unable to find any information on USCIS website or any legal websites. Can someone direct me to some sites with information or explain the process to me? 

 

Thanks in advance. 

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2 minutes ago, Raffaella said:

My cousin who's visitor visa expired 7 years ago and he would like to apply for a green card through his father who is a permanent resident. I have heard that this can be done but am unable to find any information on USCIS website or any legal websites. Can someone direct me to some sites with information or explain the process to me? 

 

Thanks in advance. 

You could look at the guides here.     It the "son" is an adult then the father would need to become a citizen.  That is why you aren't finding anything.


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14 minutes ago, Raffaella said:

Yes, the son is an adult however according to USCIS an unmarried son or daughter may get a greencard through the parent who is a permanent resident but the son is in the U.S. already.

 

Yes, that is correct but the son can not stay here in the USA during that process which will take up to 7 years for unmarried children

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Filed: K-1 Visa Country: Wales
Timeline

Father files I 130 for son assuming son is not married

 

Son has to leave, can not adjust and anyway has a long wait

 

Son my require waiver depending how long son had overstayed

 

Son can not marry unless Father becomes a USC first.


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45 minutes ago, Raffaella said:

Yes, the son is an adult however according to USCIS an unmarried son or daughter may get a greencard through the parent who is a permanent resident but the son is in the U.S. already.

 

Check the details here: https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-family-preference-immigrants

 

How old is your cousin?

 

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Filed: Country: Vietnam (no flag)
Timeline
1 hour ago, Raffaella said:

My cousin who's visitor visa expired 7 years ago and he would like to apply for a green card through his father who is a permanent resident. I have heard that this can be done but am unable to find any information on USCIS website or any legal websites. Can someone direct me to some sites with information or explain the process to me? 

 

Thanks in advance. 

Sorry, you heard wrong.  Overstay is not forgiven for a relative of a green card holder.  Even if his father was a US citizen, overstay is not forgiven for an adult over 21 years old child.

The only way for your cousin to benefit from a petition from his father is for him to leave the US and wait for his 10 years ban to expire.  If his PD becomes current about 7 years after filing the I-130, he may be eligible for a waiver if the father can show a hardship.  That's the only way.

 

 

Edited by aaron2020

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1 hour ago, Raffaella said:

Yes, the son is an adult however according to USCIS an unmarried son or daughter may get a greencard through the parent who is a permanent resident but the son is in the U.S. already.

 

Has the son been in the US since the visa expired?


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No family member of a green card holder can adjust status from being out of status. That’s the most important factor here.

The second factor is how long a ban the son has incurred and whether that will impact the time he needs to wait for his green card via consular processing. In this case it appears he will have a ten year ban.

 

All the other factors are minor details. 
 

 

Edited by SusieQQQ

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13 hours ago, SusieQQQ said:

No family member of a green card holder can adjust status from being out of status. That’s the most important factor here.

The second factor is how long a ban the son has incurred and whether that will impact the time he needs to wait for his green card via consular processing. In this case it appears he will have a ten year ban.

 

All the other factors are minor details. 
 

 

Thanks so much. So can you direct me to the CFR or USCIS section that has that information?

16 hours ago, Timona said:

Which country is the father/ son duo from? That plays a factor too.

 

16 hours ago, Timona said:

Which country is the father/ son duo from? That plays a factor too.

 

16 hours ago, Timona said:

Which country is the father/ son duo from? That plays a factor too.

Jordan.

17 hours ago, Chancy said:

30. 

 

17 hours ago, Lucky Cat said:

Has the son been in the US since the visa expired?

yes

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17 hours ago, Boiler said:

Father files I 130 for son assuming son is not married

 

Son has to leave, can not adjust and anyway has a long wait

 

Son my require waiver depending how long son had overstayed

 

Son can not marry unless Father becomes a USC first.

thanks

 

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36 minutes ago, Raffaella said:

Thanks so much. So can you direct me to the CFR or USCIS section that has that information?

https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-2

Quote

1. Bars to Adjustment

...

Is not in lawful immigration status on the date of filing his or her application; [12] 

...

12. [^] See INA 245(c)(2). See 8 CFR 245.1(b)(5). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar.

 

This particular bar is waived for certain individuals, such as the immediate relative (IR) of a US citizen. But an IR is defined as a spouse, parent, or unmarried child under age 21.

Edited by geowrian

Timelines:

ROC:

Spoiler

7/27/20: Sent forms to Dallas lockbox, 7/30/20: Received by USCIS, 8/10 NOA1 electronic notification received, 8/1/ NOA1 hard copy received

AOS:

Spoiler

AOS (I-485 + I-131 + I-765):

9/25/17: sent forms to Chicago, 9/27/17: received by USCIS, 10/4/17: NOA1 electronic notification received, 10/10/17: NOA1 hard copy received. Social Security card being issued in married name (3rd attempt!)

10/14/17: Biometrics appointment notice received, 10/25/17: Biometrics

1/2/18: EAD + AP approved (no website update), 1/5/18: EAD + AP mailed, 1/8/18: EAD + AP approval notice hardcopies received, 1/10/18: EAD + AP received

9/5/18: Interview scheduled notice, 10/17/18: Interview

10/24/18: Green card produced notice, 10/25/18: Formal approval, 10/31/18: Green card received

K-1:

Spoiler

I-129F

12/1/16: sent, 12/14/16: NOA1 hard copy received, 3/10/17: RFE (IMB verification), 3/22/17: RFE response received

3/24/17: Approved! , 3/30/17: NOA2 hard copy received

 

NVC

4/6/2017: Received, 4/12/2017: Sent to Riyadh embassy, 4/16/2017: Case received at Riyadh embassy, 4/21/2017: Request case transfer to Manila, approved 4/24/2017

 

K-1

5/1/2017: Case received by Manila (1 week embassy transfer??? Lucky~)

7/13/2017: Interview: APPROVED!!!

7/19/2017: Visa in hand

8/15/2017: POE

 

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1 hour ago, Raffaella said:

Thanks so much. So can you direct me to the CFR or USCIS section that has that information?

 

To add to what geowrian highlighted, I’m assuming that if he has been in the US for 7 years he has probably worked illegally too, which is another bar to adjustment. 
 

This is the full list, I have bolded all the ones that likely apply to him (probably 4, though note that just one is enough to bar him)

 

1. Bars to Adjustment

Depending on how an alien entered the United States or if an alien committed a particular act or violation of immigration law, he or she may be barred from adjusting status. With certain exceptions, some aliens ineligible for adjustment of status under INA 245 include any alien who: [8] 

  • Last entered the United States without being admitted or paroled after inspection by an immigration officer; [9] 

  • Last entered the United States as a nonimmigrant crewman; [10] 

  • Is now employed or has ever been employed in the United States without authorization; [11] 

  • Is not in lawful immigration status on the date of filing his or her application; [12] 

  • Has ever failed to continuously maintain a lawful status since entry into the United States, unless his or her failure to maintain status was through no fault of his or her own or for technical reasons; [13] 

  • Was last admitted to the United States in transit without a visa; [14] 

  • Was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and who is not a Canadian citizen; [15] 

  • Was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; [16] 

  • Is deportable due to involvement in a terrorist activity or group; [17] 

  • Is seeking employment-based adjustment of status and who is not maintaining a lawful nonimmigrant status on the date of filing this application; [18] 

  • Has ever violated the terms of his or her nonimmigrant status; [19] 

  • Is a conditional permanent resident; [20] and

  • Was admitted as a nonimmigrant fiancé(e), but did not marry the U.S. citizen who filed the petition or any alien who was admitted as the nonimmigrant child of a fiancé(e) whose parent did not marry the U.S. citizen who filed the petition. [21] 

 

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1 hour ago, Raffaella said:

Thanks so much. So can you direct me to the CFR or USCIS section that has that information?

 

And here is the information on the ban period. You’ll see the ten year ban applies to him.  Note that the ban period begins when he leaves the US, so the sooner he leaves the sooner he can work through the ban period and the sooner he can return legally, though it won’t be “soon”.

 

https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-bars-to-admissibility

 

You may be barred from being admitted to the United States for:

  • Three years, if you depart the United States after having accrued more than 180 days but less than one year of unlawful presence during a single stay and before removal proceedings begin;
  • 10 years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or
  • Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

 

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