Petition for overstayed child

[kcoyclay1 98]

My son is currently 15 years old. He came to the US in B2 visa when he was 13 years old. Now I have a Green Card in 2009. I will planning to obtain US Citizenship in 2014. Can I filed I-130 for my son and waiting until his priority date become current. Then I can file the AOS for him. Or should I wait until I get US Citizenship and file the AOS for him.

I worry that because my son is overstayed, by filing I-130 for him, we will run into the risk of deny.

Thank you very much.

Since your son has overstay his visitor visa, he is deportable. Even if you petition for him, he is still deportable. A I-130 filed for him today would take about 4-5 years to get approved. Once he turns 18 years 6 months old, he is potentially subject to a ban from the US. Are you willing to take the risk that he will be banned for 10 years? Why are you coming to a bulletin board to get the answer to such an important question? Under the terms of use for this site, we cannot give you any advice that violates the law which includes how your son can continue to be in the US illegally. Go see a lawyer.

Aaron2020,

Please read what USCIS states before giving advise. She CAN petition for her child. He is a minor and even though he has overstayed, his status can be adjusted. This information has been taken fron the USCIS website. Please note that legally means that he was seen at a border or customs area and given an I-194 or entry into the USA. Adjusting out-of-status children and spouses is not considered illegal. I also checked with an immigration lawyer. See USCIS information below:

"What happens next?

* If your relative is already in the United States legally, he or she may apply to adjust status to become a permanent resident after a visa number becomes available using Form I-485, Application to Register Permanent Residence or Adjust Status.

In this case there is a very big difference between a USC and a LPR. A USC can file I-130 & AOS for a minor child BUT a LPR can NOT file for I-130 & AOS.

Please be careful about the accuracy of the information you are giving before you post.

Can you please give me facts on your response. Where did you get your information from, was it the USCIS website? I got my information from the USCIS website and from an immigration lawyer and I also KNOW that permanent residents have petitioned for their out of status minor children. Again, can you give me proof of your response from USCIS?

[kcoyclay1 98]

More information.

Adjustment of Status

The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.”

The INA provides an individual two primary paths to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing.

Consular processing is an alternate process for an individual outside the United States (or who is in the United States but is ineligible to adjust status) to obtain a visa abroad and enter the United States as a permanent resident) This pathway is referred to as “consular processing” (see the link to the left).

Steps for Adjustment of Status

1. Determine Your Basis to Immigrate

The first step in the adjustment of status process is to determine if you fit into a specific immigrant category . Most immigrants become eligible for a green card (permanent residence) through a petition filed on your behalf by a family member or employer. Others become permanent residents through first obtaining refugee or asylum status, or through a number of other special provisions. To see the many different ways to get a green card, see the links to the left.

2. File the Immigrant Petition

When you know what category you believe best fits your situation, in most cases, you will need to have an immigrant petition filed on your behalf.

* Family Based

Family based categories require that a U.S. citizen or permanent resident relative file a Form I-130, Petition for Alien Relative, for you. For more information, see the “Family” link to the right.

[payxibka 10,047]

Can you please give me facts on your response. Where did you get your information from, was it the USCIS website? I got my information from the USCIS website and from an immigration lawyer and I also KNOW that permanent residents have petitioned for their out of status minor children. Again, can you give me proof of your response from USCIS?

You can petition for your out of status child (I-130)... that is not the issue.. the issue is a concurrent adjustment of status (I-485). Unless the petitioner is a USC (which provides an immediate visa number) the adjustment of status cannot occur until a visa number is available

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent

Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

F2A is currently June 2005... A visa number for a child of a LPR will have a 4+ yr wait for a visa number. Only then can adjustment of status happen.

http://travel.state.gov/visa/frvi/bulletin...letin_4575.html

Edited September 23, 2009 by payxibka

[aaron2020 11,651]

Can you please give me facts on your response. Where did you get your information from, was it the USCIS website? I got my information from the USCIS website and from an immigration lawyer and I also KNOW that permanent residents have petitioned for their out of status minor children. Again, can you give me proof of your response from USCIS?

You need to read the entire posting from USCIS, not just part of it.

http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

Adjustment of Status

3. Check Visa Availability

You may not file your Form I-485 until a visa is available in your category. If an immigrant visa is currently available to you, you may be able to apply for permanent residence status on Form I-485. See the “Visa Availability & Priority Dates” link to the left, for more information on if you have a visa immediately available to you.

http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

Visa Availability & Priority Dates

Immigrant visas available to “immediate relatives” of U.S. citizens are unlimited, so are always available. . Immediate relatives include, parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen.

Immigrant visa numbers for individuals in a “preference category” are limited, so are not always available. For more information on both family-based and employment-based preference categories, please see the “Green Card Eligibility” link to the left.

----------------

The information that TayRivers and payxibka gave is correct. The overstay child cannot file form I-485 to adjust his status until there is an available visa for him in the F2a or F2b category. This means the child is in the US illegally until approval of the I-485 (which he cannot file) and the child is deportable.

Edited September 23, 2009 by aaron2020

[msdelila 1]

I don't know all the rules exactly, but my mother was a PR and I was legally in the US. I believe I was technically on a student visa (even though I was 14yrs old) until she became a citizen, then she petitioned for me to get a green card. It took awhile, but I subsequently got my green card and naturalized. I think it's possible somehow, but as others said, you would need to ask a lawyer to be sure.

[aaron2020 11,651]

I don't know all the rules exactly, but my mother was a PR and I was legally in the US. I believe I was technically on a student visa (even though I was 14yrs old) until she became a citizen, then she petitioned for me to get a green card. It took awhile, but I subsequently got my green card and naturalized. I think it's possible somehow, but as others said, you would need to ask a lawyer to be sure.

Your mother was a USC when she filed for you. Your case was an Immediate Relative case and a visa was available to you in your category. That is why you could adjust your status.

If your mother was still an LPR, you could not have adjusted your status as a visa was probably not immediately available to you in the F2a category.

The status of the petitioner and the relationship to the beneficiary determines when a visa is available to a beneficiary. Not every relative is treated the same. US citizens have priority over LPRs in petitioning for family. Unmarried minor children have priority over adult children.

It is not possible somehow for a beneficiary who is petition by an LPR to adjust until the beneficiary's PD becomes current. The a petition filed by an LPR becomes current is 4 years in the F2a category. So, a LPR cannot file form I-130 and form I-485 at the same time.

Edited September 24, 2009 by aaron2020

[Boiler 46,119]

He was in status, F1, until his PD was current.

[kcoyclay1 98]

Can you please give me facts on your response. Where did you get your information from, was it the USCIS website? I got my information from the USCIS website and from an immigration lawyer and I also KNOW that permanent residents have petitioned for their out of status minor children. Again, can you give me proof of your response from USCIS?

You can petition for your out of status child (I-130)... that is not the issue.. the issue is a concurrent adjustment of status (I-485). Unless the petitioner is a USC (which provides an immediate visa number) the adjustment of status cannot occur until a visa number is available

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent

Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; What we need to remember is that a child is different from a son or daughter and their category is also different.

F2A is currently June 2005... A visa number for a child of a LPR will have a 4+ yr wait for a visa number. Only then can adjustment of status happen.

http://travel.state.gov/visa/frvi/bulletin...letin_4575.html

You are right when you say the adjustment cannot occur until the visa number is issued. the question asked was regarding the possibility if petitioning and if the child would be deported for overstaying. The answer is no. Yes, the wait is 4 years, but the adjustment will be made while the child is in the USA. The child will not be deported because the petitioner had to wait until a visa number to become available. When it becomes available, then the adjustment process will begin in the USA

Edited September 24, 2009 by kcoyclay1

[NArocks 13]

My son is currently 15 years old. He came to the US in B2 visa when he was 13 years old. Now I have a Green Card in 2009. I will planning to obtain US Citizenship in 2014. Can I filed I-130 for my son and waiting until his priority date become current. Then I can file the AOS for him. Or should I wait until I get US Citizenship and file the AOS for him.

I worry that because my son is overstayed, by filing I-130 for him, we will run into the risk of deny.

Thank you very much.

This is the last time I will beat the dead horse.

There is always a risk of denial...

The child as stated here is 15 years old, the child will start to accumulate a ban ( for the over stay ) when he reaches 18 years old. By being in the US without a VALID VISA he is subject to deportation. PLease stop saying the child is not deportable he is if caught. There are many stories on the news of families being broken up and devastated as one or more of them is here without a valid visa. Now a days it is different as far as the child leading a normal life. I know when I signed my step sons up for school they had to show this and that paper about being here leagally.

A word of caution do Not say what you do not know. ANYONE is deportable if they do not have a valid visa ( meaning it is current ) and are caught. This does not mean they will come and knock on the door. But you never know!!!!

[kcoyclay1 98]

Can you please give me facts on your response. Where did you get your information from, was it the USCIS website? I got my information from the USCIS website and from an immigration lawyer and I also KNOW that permanent residents have petitioned for their out of status minor children. Again, can you give me proof of your response from USCIS?

You can petition for your out of status child (I-130)... that is not the issue.. the issue is a concurrent adjustment of status (I-485). Unless the petitioner is a USC (which provides an immediate visa number) the adjustment of status cannot occur until a visa number is available

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent

Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

F2A is currently June 2005... A visa number for a child of a LPR will have a 4+ yr wait for a visa number. Only then can adjustment of status happen.

http://travel.state.gov/visa/frvi/bulletin...letin_4575.html

payxibka, I noticed that you got your information from travel.state and it is generally correct; however, they grouped the preference for permanent residents and it is not so. Sons and daughters are classified differently from children and is next in the category of preferences. Check out the USCIS website http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

[kcoyclay1 98]

My son is currently 15 years old. He came to the US in B2 visa when he was 13 years old. Now I have a Green Card in 2009. I will planning to obtain US Citizenship in 2014. Can I filed I-130 for my son and waiting until his priority date become current. Then I can file the AOS for him. Or should I wait until I get US Citizenship and file the AOS for him.

I worry that because my son is overstayed, by filing I-130 for him, we will run into the risk of deny.

Thank you very much.

This is the last time I will beat the dead horse.

There is always a risk of denial...

The child as stated here is 15 years old, the child will start to accumulate a ban ( for the over stay ) when he reaches 18 years old. By being in the US without a VALID VISA he is subject to deportation. PLease stop saying the child is not deportable he is if caught. There are many stories on the news of families being broken up and devastated as one or more of them is here without a valid visa. Now a days it is different as far as the child leading a normal life. I know when I signed my step sons up for school they had to show this and that paper about being here leagally.

A word of caution do Not say what you do not know. ANYONE is deportable if they do not have a valid visa ( meaning it is current ) and are caught. This does not mean they will come and knock on the door. But you never know!!!!

You guys are twisting everything. Lets go back to the question asked. We all know that if the child is not petitioned for then he is deportable.The question is not about hiding the child in the USA; it is about petitioning for the child at age 15. It takes 4 yrs for a LPR to get a visa number for the child she has petitioned for. Again, we all know that by now. A child ages out at 21; in 4 yrs time her child will be 19 yrs old and at the top of the line with two years to spare before aging out. One year after that she will become a citizen, USCIS allows LPRs who become citizens to change their status by sending proof of citizenship and a visa number will be immediately available. Anyway, regardless of the route she choses to take as long as she has her approved petition, the child would not be up for deportation; that would make no sense for immigration to approve it knowing that it takes four years then deport the child. I called immigration myself and YES she can petition for her child while in the USA.

When you reply, please give me information based on what immigration states and not your understanding of it.

Edited September 24, 2009 by kcoyclay1

[kcoyclay1 98]

Thank you for all of your support. God Bless you all. It's been a emotional months for me. The only worry in my mind is about my son illegal status. Right now, I am LPR. But I think if I become USC, my son out of status issue will be forgiven once I file the AOS for him. I just don't know that I should file the I-130 and get his application in the waiting list. OR I should I wait until I become USC and file I-485 together with I-130.

tobias, is your spouse a USC? If he/she is then they can file for your son. You have not told us how you got your LPR status so we have no idea if other options are open to you.

It does not matter how she got her LPR as long as it is legally done; with that, an LPR is an LPR. Tobias can check out this website to see the meaning of the term "is legally in the USA". http://www.***removed***/greencard/familyba...sons-in-us.html. Her son came here legally and she is an LPR; she may petition for her child now.

Edited September 24, 2009 by kcoyclay1

[aaron2020 11,651]

My son is currently 15 years old. He came to the US in B2 visa when he was 13 years old. Now I have a Green Card in 2009. I will planning to obtain US Citizenship in 2014. Can I filed I-130 for my son and waiting until his priority date become current. Then I can file the AOS for him. Or should I wait until I get US Citizenship and file the AOS for him.

I worry that because my son is overstayed, by filing I-130 for him, we will run into the risk of deny.

Thank you very much.

This is the last time I will beat the dead horse.

There is always a risk of denial...

The child as stated here is 15 years old, the child will start to accumulate a ban ( for the over stay ) when he reaches 18 years old. By being in the US without a VALID VISA he is subject to deportation. PLease stop saying the child is not deportable he is if caught. There are many stories on the news of families being broken up and devastated as one or more of them is here without a valid visa. Now a days it is different as far as the child leading a normal life. I know when I signed my step sons up for school they had to show this and that paper about being here leagally.

A word of caution do Not say what you do not know. ANYONE is deportable if they do not have a valid visa ( meaning it is current ) and are caught. This does not mean they will come and knock on the door. But you never know!!!!

You guys are twisting everything. Lets go back to the question asked. We all know that if the child is not petitioned for then he is deportable.The question is not about hiding the child in the USA; it is about petitioning for the child at age 15. It takes 4 yrs for a LPR to get a visa number for the child she has petitioned for. Again, we all know that by now. A child ages out at 21; in 4 yrs time her child will be 19 yrs old and at the top of the line with two years to spare before aging out. One year after that she will become a citizen, USCIS allows LPRs who become citizens to change their status by sending proof of citizenship and a visa number will be immediately available. Anyway, regardless of the route she choses to take as long as she has her approved petition, the child would not be up for deportation; that would make no sense for immigration to approve it knowing that it takes four years then deport the child. I called immigration myself and YES she can petition for her child while in the USA.

When you reply, please give me information based on what immigration states and not your understanding of it.

You are so incredibly wrong. No one is agreeing with you. When an LPR files an I-130 for a spouse or unmarried child, the beneficiary does not gain any immigration rights. That person is deportable if he is here illegally. An overstay on a legal entry makes a person an illegal alien. Stop saying the child cannot be deported when he is out of status (overstayed his visa, illegally in the US, etc).

Edited September 24, 2009 by aaron2020

[aaron2020 11,651]

My son is currently 15 years old. He came to the US in B2 visa when he was 13 years old. Now I have a Green Card in 2009. I will planning to obtain US Citizenship in 2014. Can I filed I-130 for my son and waiting until his priority date become current. Then I can file the AOS for him. Or should I wait until I get US Citizenship and file the AOS for him.

I worry that because my son is overstayed, by filing I-130 for him, we will run into the risk of deny.

Thank you very much.

This is the last time I will beat the dead horse.

There is always a risk of denial...

The child as stated here is 15 years old, the child will start to accumulate a ban ( for the over stay ) when he reaches 18 years old. By being in the US without a VALID VISA he is subject to deportation. PLease stop saying the child is not deportable he is if caught. There are many stories on the news of families being broken up and devastated as one or more of them is here without a valid visa. Now a days it is different as far as the child leading a normal life. I know when I signed my step sons up for school they had to show this and that paper about being here leagally.

A word of caution do Not say what you do not know. ANYONE is deportable if they do not have a valid visa ( meaning it is current ) and are caught. This does not mean they will come and knock on the door. But you never know!!!!

You guys are twisting everything. Lets go back to the question asked. We all know that if the child is not petitioned for then he is deportable.The question is not about hiding the child in the USA; it is about petitioning for the child at age 15. It takes 4 yrs for a LPR to get a visa number for the child she has petitioned for. Again, we all know that by now. A child ages out at 21; in 4 yrs time her child will be 19 yrs old and at the top of the line with two years to spare before aging out. One year after that she will become a citizen, USCIS allows LPRs who become citizens to change their status by sending proof of citizenship and a visa number will be immediately available. Anyway, regardless of the route she choses to take as long as she has her approved petition, the child would not be up for deportation; that would make no sense for immigration to approve it knowing that it takes four years then deport the child. I called immigration myself and YES she can petition for her child while in the USA.

When you reply, please give me information based on what immigration states and not your understanding of it.

[aaron2020 11,651]

My son is currently 15 years old. He came to the US in B2 visa when he was 13 years old. Now I have a Green Card in 2009. I will planning to obtain US Citizenship in 2014. Can I filed I-130 for my son and waiting until his priority date become current. Then I can file the AOS for him. Or should I wait until I get US Citizenship and file the AOS for him.

I worry that because my son is overstayed, by filing I-130 for him, we will run into the risk of deny.

Thank you very much.

This is the last time I will beat the dead horse.

There is always a risk of denial...

The child as stated here is 15 years old, the child will start to accumulate a ban ( for the over stay ) when he reaches 18 years old. By being in the US without a VALID VISA he is subject to deportation. PLease stop saying the child is not deportable he is if caught. There are many stories on the news of families being broken up and devastated as one or more of them is here without a valid visa. Now a days it is different as far as the child leading a normal life. I know when I signed my step sons up for school they had to show this and that paper about being here leagally.

A word of caution do Not say what you do not know. ANYONE is deportable if they do not have a valid visa ( meaning it is current ) and are caught. This does not mean they will come and knock on the door. But you never know!!!!

You guys are twisting everything. Lets go back to the question asked. We all know that if the child is not petitioned for then he is deportable.The question is not about hiding the child in the USA; it is about petitioning for the child at age 15. It takes 4 yrs for a LPR to get a visa number for the child she has petitioned for. Again, we all know that by now. A child ages out at 21; in 4 yrs time her child will be 19 yrs old and at the top of the line with two years to spare before aging out. One year after that she will become a citizen, USCIS allows LPRs who become citizens to change their status by sending proof of citizenship and a visa number will be immediately available. Anyway, regardless of the route she choses to take as long as she has her approved petition, the child would not be up for deportation; that would make no sense for immigration to approve it knowing that it takes four years then deport the child. I called immigration myself and YES she can petition for her child while in the USA.

When you reply, please give me information based on what immigration states and not your understanding of it.

Of course she can petition for her child now while he is in the US. No one said otherwise. Whether he is subject to deportation is another matter. What I and others have posted is that the child cannot file an I-485 now to adjust as he can only do so when a visa becomes available to him in four years. Unless the beneficiary is here legally on another visa, the beneficiary cannot wait in the US for an immigration visa.

Why don't you try to call immigration and asked them if an LPR can file and I-130 AND an I-485 for her son who is in the US and has overstayed his visa. Ask if he can stay in the US with just an I-130 filed for him as you have been given the proof that you asked for regarding the I-485.

By the way, where is your proof that the child is not deportable? You have asked other for proof and now I am asking you for yours. Point me to something in writing. Do not say immigration or a lawyer told you. You have make a conjecture without proof. "Anyway, regardless of the route she choses to take as long as she has her approved petition, the child would not be up for deportation; that would make no sense for immigration to approve it knowing that it takes four years then deport the child. "

Edited September 24, 2009 by aaron2020