Replace I-94 or just do an I-130?? Advice please

[NickD 202]

The maximum stay is determined by the class of admission. There isn't a specific space for writing this on the I-94. CBP will stamp the I-94 with an oval two-color stamp. The stamp contains the entry date in red. They use a second red stamp to indicate the date the I-94 expires. The class of admission is written on a line in the stamp that says "Class Until:".

There's no point in pursuing a replacement I-94 if USCIS has already stated that they have no record of his admission. However, he does need to prove that he's entered the US "with inspection". He's only eligible to adjust status if he was admitted or paroled into the US (i.e., someone who sneaks across the border isn't eligible) and, unfortunately, the burden of proof is on the alien. Although the passport stamp resembles the stamp they place on the I-94, immigration officers are sometimes reluctant to accept a passport stamp alone. This is because each I-94 contains a unique serial number which can make it dramatically easier for USCIS to find the record of entry.

The law requires that an alien prove they were lawfully admitted to the United States. There are exceptions that allow an alien to be presumed to have been lawfully admitted, even if no record of admission can be produced. In many cases, the exceptions merely require the alien to prove that they were physically present in the US, sometimes on or before a specific date. The exceptions are described in 8 CFR section 101.1. None of those exceptions apply to this kid. In MATTER OF AREGUILLIN, 1980 (among others), the Board of Immigration Appeals has established that an alien bears the burden of proving that they presented themselves to an immigration officer for inspection upon entering the US as a prerequisite to establishing their eligibility to adjust status. Simply making the claim isn't sufficient, and USCIS is not responsible for producing the relevant records, even if they exist.

The passport stamp may not be enough. If they have any of the documents from USCIS regarding his application to extend his stay then that might be very useful.

That would be the USCIS form I-539, Application To Extend/change Nonimmigrant Status. See I still have that form downloaded on my computer, just in case and the filing fee is now $290.00. Did listen to a program on nonimmigrants on our WPR station, stated the vast majority of non-documented people here are due to overstayed visas. Made me wonder about that since I was so concerned about my wife and stepdaughter overstaying, is anyone checking on this?

My only experience with this I-94 is picking up my wife to be and stepdaughter at a POE airport, if the arrival of their plane was say, 2:00 PM, would be lucky to see them at 4:00 PM. Would see their I-94 cards that would limit their stay, one time was as long as their return ticket, couldn't even stay a couple of days longer. This was during our dating process to learn whether we wanted to make a life together or not. Did see that nine digit number on their I-94's, have no idea of whether they keep of record of this, but apparently not. Do know they collect them on your return trip. Millions of tourists come here each year, its kind of like, welcome to the USA, enjoy your stay and spend lots of money.

Could explain why they have no record of his visit, maybe they just don't keep records. Certainly in the case of this boy, no one came to check on why he was still here. And suspect that I-94 was removed and destroyed, kind of a statement that he did overstay. A shame his parent didn't take care of this in a timely manner, and hopefully the USCIS will show some mercy to this child. Children have no choice, had my own form of suffering when my dad deserted my mom when I was ten years old. Same happened to my stepdaughter, but when she was seven years old, does create some psychological problems with a child that I had to deal with.

At least the boys' parent is doing something about it now.

[Krikit 1,164]

There's no point in pursuing a replacement I-94 if USCIS has already stated that they have no record of his admission. However, he does need to prove that he's entered the US "with inspection". He's only eligible to adjust status if he was admitted or paroled into the US (i.e., someone who sneaks across the border isn't eligible) and, unfortunately, the burden of proof is on the alien. Although the passport stamp resembles the stamp they place on the I-94, immigration officers are sometimes reluctant to accept a passport stamp alone.

I wonder how they handle Canadians who never received a stamp or an I-94, because they adjust all the time without proof of entry. And going back a few years at the land borders, they just waved landed immigrants and UK visitors through the same way. They don't have stamps/I-94's either. I know of at least one UK-born person on here who was trying to adjust in that situation. Brought here as a child legally, no stamp or I-94. She was also trying to adjust status with no proof of legal entry. That was a few years back. I'll try to find her in a search.

No longer concerned about getting robbed in a dark alley, have doctors and the USCIS to do that for me.

Nick, you make me laugh.

[JimVaPhuong 4,863]

I wonder how they handle Canadians who never received a stamp or an I-94, because they adjust all the time without proof of entry. And going back a few years at the land borders, they just waved landed immigrants and UK visitors through the same way. They don't have stamps/I-94's either. I know of at least one UK-born person on here who was trying to adjust in that situation. Brought here as a child legally, no stamp or I-94. She was also trying to adjust status with no proof of legal entry. That was a few years back. I'll try to find her in a search.

Many Canadians are denied AOS for lack of proof of lawful admission. A quick Google search turns up dozens of cases like this. The Adjudicators Field Manual states that proof of lawful admission is a matter of evidence and not a matter of discretion. Canadians who entered the US by crossing a land border after October 1, 1906 (or after July 1, 1924, if they passed through a preinspection station) are not allowed the presumption of lawful admission. They need proof.

Many Canadians who enter the US now do not get their passports stamped, but they do scan the RFID chip in the passport and record their entry.

Edited October 23, 2011 by JimVaPhuong

[Rebecca Jo 1,962]

I volunteer for a non-profit. The services are free. We do family petitions and citizenship. FOR FREE !!!!!!!!! I'm coming here because I'm unfamiliar with this situation. We call them clients because we are not going to call them customers or something else that sounds unprofessional.

Anyway thanks for looking at my post and your helpful reply. Good day.

BS.

Reported.

[T Money 0]

The maximum stay is determined by the class of admission. There isn't a specific space for writing this on the I-94. CBP will stamp the I-94 with an oval two-color stamp. The stamp contains the entry date in red. They use a second red stamp to indicate the date the I-94 expires. The class of admission is written on a line in the stamp that says "Class Until:".

There's no point in pursuing a replacement I-94 if USCIS has already stated that they have no record of his admission. However, he does need to prove that he's entered the US "with inspection". He's only eligible to adjust status if he was admitted or paroled into the US (i.e., someone who sneaks across the border isn't eligible) and, unfortunately, the burden of proof is on the alien. Although the passport stamp resembles the stamp they place on the I-94, immigration officers are sometimes reluctant to accept a passport stamp alone. This is because each I-94 contains a unique serial number which can make it dramatically easier for USCIS to find the record of entry.

The law requires that an alien prove they were lawfully admitted to the United States. There are exceptions that allow an alien to be presumed to have been lawfully admitted, even if no record of admission can be produced. In many cases, the exceptions merely require the alien to prove that they were physically present in the US, sometimes on or before a specific date. The exceptions are described in 8 CFR section 101.1. None of those exceptions apply to this kid. In MATTER OF AREGUILLIN, 1980 (among others), the Board of Immigration Appeals has established that an alien bears the burden of proving that they presented themselves to an immigration officer for inspection upon entering the US as a prerequisite to establishing their eligibility to adjust status. Simply making the claim isn't sufficient, and USCIS is not responsible for producing the relevant records, even if they exist.

The passport stamp may not be enough. If they have any of the documents from USCIS regarding his application to extend his stay then that might be very useful.

Mr.JimVaPhuong thank you for taking the time to read and respond to my question. Although I understood the response I'm still a bit confused. My questions are:

-What remedies, if any, are available to this young man?

-Would doing an I-130, 485, 864, G-325A the best route and hope for the best?

If you need more information please let me know. Thanks again.

[NickD 202]

Mr.JimVaPhuong thank you for taking the time to read and respond to my question. Although I understood the response I'm still a bit confused. My questions are:

-What remedies, if any, are available to this young man?

-Would doing an I-130, 485, 864, G-325A the best route and hope for the best?

If you need more information please let me know. Thanks again.

This is a question I would leave to my very well experienced immigration attorney. When bringing my stepdaughter her, he cautioned me to apply for I-130, 485, 864, G-325A , I-693 immediately, and extend her I-94 with that I-539 if necessary. Can only answer your question on my experience.

I know I did comment on a confusing situation, the mom is now a US citizen that could be interpreted that her son automatically became a US citizen as well, but the norm is that child already has a green card. This stage was not done for this child.

I just feel the I-130, 485, 864, G-325A , I-693 is the only correct route to take with knowledge of that law, that overstaying a visa does not include a minor under the age of 18. But I never did see that law.

Perhaps this question is left best up to an experienced immigration attorney.

[T Money 0]

Thank you for your response Nick

I will suggest they seek the counsel of an experienced imm lawyer.

But as we are all aware of we are also curious to know the correct answer lol. So if anyone here knows it and hopefully reads my post then maybe we all can get an answer. Although is sounds like a complicated situation im sure the response is probably simple lol but that will be for a lawyer to determine. Thanks again Nick

[NickD 202]

Thank you for your response Nick

I will suggest they seek the counsel of an experienced imm lawyer.

But as we are all aware of we are also curious to know the correct answer lol. So if anyone here knows it and hopefully reads my post then maybe we all can get an answer. Although is sounds like a complicated situation im sure the response is probably simple lol but that will be for a lawyer to determine. Thanks again Nick

Just trying to apply logic, if kids can overstay a visa without penalty, we could all bring kids here and completely bypass the AOS and even the ROC stages. Just wait the two years and nine months, let the parent become a US citizen, then assume those undocumented kids are automatically US citizens as well. We went through hell to bring my stepdaughter here, her biological father that even deserted here seven years before I met her mom took advantage of this situation and tried to blackmail us. Took quite a court case to settle that.

As it is, kids are even a lot more expensive to bring here because you also are required to get permission from the biological parent with other documentation and even a DNA test to prove to the USCIS those kids are yours. So the best I can offer using this logic, is you cannot bypass that AOS stage, adjustment of status, if you may. But sure would be nice if you could.

Never ran into this incident before where a child overstayed his/her visa and bypassed the AOS stage, but have ran into incidents when that child turns 18, and if caught, are deported.

[Darnell 8,478]

File that 4-pack pile of forms for the kid, with the mother (Now a USCitizen) as the petitioner.

Expect no consular processing, as this is NOT a visa packet yer helping them to prep, but

an

adjustment of status packet.

File all concurrently.

re: prior action/stuff with USCIS - Unsure what to tell you. As is, right now, the kid entered the country legally, and (by law) he won't be deported (unless he's caught) until after age 18.

after a re-read -

the i-94 isn't so necessary, if copy of all passport pages is included with the I-130 and the I-485 (2 seperate forms, need 2 seperate copy sets)

Edited October 24, 2011 by Darnell

[T Money 0]

Thank you for your reply guys. Its alot to digest but I will give the parents the info i got here and let them decide. but i will refer them to a lawyer either way.

But I would welcome any more responses from anyone who may have more knowledge.

Thanks guys

[JimVaPhuong 4,863]

Mr.JimVaPhuong thank you for taking the time to read and respond to my question. Although I understood the response I'm still a bit confused. My questions are:

-What remedies, if any, are available to this young man?

-Would doing an I-130, 485, 864, G-325A the best route and hope for the best?

If you need more information please let me know. Thanks again.

Frankly, I'm not sure what remedies are available. His I-102 was denied because, apparently, he's not in the NIIS system. This either means his admission was not properly recorded when he entered the US, or the information provided on the I-102 form was not accurate. USCIS can create a record of admission if he can provide evidence that he was lawfully admitted. They can do this as a part of processing the I-485. However, this record of admission can't be used to subsequently attempt to get a replacement I-94.

One thing is certain - you can't produce evidence you don't have. Talk to his parents and find out what documents they still have. The RFE for the visa extension would be especially useful since it will prove to USCIS that they've dealt with this kid before, and may even help them find the admission records.

There's not much risk in sending in the concurrent filing package now. If it's denied then the kid still has time to leave the US before he begins to accumulate unlawful presence and incurs a ban. The I-130 will probably be approved in any case, and if the I-485 is denied then he can leave the US and apply for an immigrant visa at the consulate in Greece. Just make sure they understand that they need to get this resolved before six months after his 18th birthday. If he hasn't got a green card in his hand by that time then he should leave the US and apply for a visa to come back.

[T Money 0]

Thank you so much for the added advice. I believe that sending the I-102 from May/june 2002 would show that they have dealt with the kid before when he was six. They have already paid for the I-102 so they might as well get there moneys worth. But all in all im going to recommend they seek an imm lawyer to assist them.

Thank you so much for your time and attention.

Edited October 24, 2011 by T Money

[NickD 202]

Thank you so much for the added advice. I believe that sending the I-102 from May/june 2002 would show that they have dealt with the kid before when he was six. They have already paid for the I-102 so they might as well get there moneys worth. But all in all im going to recommend they seek an imm lawyer to assist them.

Thank you so much for your time and attention.

Some really irresponsible tax and immigration attorneys have been reported on this board, least taking the word of the people that reported them that they were indeed qualified tax or immigration attorneys. Telling them to lie on their applications, etc. Finding a good immigration attorney is the most difficult part, but unlike finding a general attorney, immigration attorneys can be located anywhere in the USA, not limited to just practicing in their state like a general attorney is.

One element of concern, the word parents is used, but only the mother somehow gained her US citizenship, what about the father? Concern is their failure to respond to an RFE or even go through the correct procedures to bring their son here. Would require a very good reason for not doing so.

The I-693 Report of medical examination and vaccination record is normally a part of the package, wondered about this, millions of tourists can come here each year without one, but required if the person wants to immigrate. But I don't make the rules, but another rule that doesn't make sense.

But also wonder if an N-600 could also be included in the package. boy should be eligible for a green card, but since his mom is already a US citizen, would take that away and give him a certificate. Some questions to ask from a good immigration attorney. Should find one that has experience in cases of this type.

Did a goggle search on this subject typing in "visa overstayed children immigration attorney" without quotes, some fairly good information on this subject. Seems to be a very common problem.

[T Money 0]

NickD thank you so much for taking time out of your day to get more information on this case. I will keep everyone who has been so generous with their advice, time and thoughts informed of what the parents did.

Thanks again