overstayed!! can AOS take place in US?

[prettybobgirl1 0]

My dad and i are not in the US, my mom and sis are and they passed their return date. we are all being filled for bt grandmother and pd is Sept. 2001. We also have a lawyer in US who is on the case, bt no indications were made by lawyer that mom and sis couldnt get status straight in US once PD is current, i also used age out calculator and i havent aged out... we were given the AOS fee info to pay once PD is current....my mom and sis can get straightened out then do interview in US or home country? info im getting is a bit conflicting help!!!!

Edited July 4, 2010 by prettybobgirl1

[justashooter 430]

they need to go back to jamaica. if they are overstayed more than 6 months they have created real problems for themselves, and may be banned for some years based on the overstay. they cannot adjust on an overstay. this only works for marriage to a USC.

[prettybobgirl1 0]

they need to go back to jamaica. if they are overstayed more than 6 months they have created real problems for themselves, and may be banned for some years based on the overstay. they cannot adjust on an overstay. this only works for marriage to a USC.

ok:-( thank you

[JimVaPhuong 4,863]

they need to go back to jamaica. if they are overstayed more than 6 months they have created real problems for themselves, and may be banned for some years based on the overstay. they cannot adjust on an overstay. this only works for marriage to a USC.

I don't think this is accurate. It works for any immediate relative of a US citizen, including spouses, parents, and children. She mentioned a priority date of September, 2001. Going by the latest visa bulletin, this would make them Family 3rd Preference - the married son or daughter of a US citizen, and their derivative spouse and children. The primary beneficiary would still be eligible to adjust status, even with an overstay. If the primary beneficiary can adjust status, then the derivative spouse and children should also be able to adjust status (presuming the derivative children have not aged out).

In Matter of Battista, the alien arrived in the US with a visitor's visa, although he had a Family Preference visa petition pending filed by his father. INS initially found him deportable for overstay, and ultimately denied his AOS for preconceived intent. The BIA overturned this decision, and granted his AOS. This is now a precedent case for USCIS.

[prettybobgirl1 0]

so there is still hope!!!!!! thnks for that JimVaPhuong!!!!! i really appreciate your response!!! where did you get that scenario quoted below? i want to read up on scenarios like my own so i can share with my family to keep us grounded because we were very worried....thanks so much again:-)

[JimVaPhuong 4,863]

so there is still hope!!!!!! thnks for that JimVaPhuong!!!!! i really appreciate your response!!! where did you get that scenario quoted below? i want to read up on scenarios like my own so i can share with my family to keep us grounded because we were very worried....thanks so much again:-)

There is a lot you can learn if you have the interest and the patience to read it. Go to uscis.gov and click on the "Laws" link at the top of the page. On the left side there is a list of links to various legal resources. You can read the complete text of the Immigration and Nationalization Act, and title 8 of the Code of Federal Regulations. These are the actual laws that govern immigration.

The "Immigration Handbooks" link will take you to a page that contains a link to the Adjudicator's Field Manual. This is the book that USCIS adjudicators and immigration officers use for guidance when making decisions on petitions. There is a section in the AFM that applies to adjustment of status. In each section, where there is specific case law that sets a precedent for USCIS to follow then a link is usually provided to the online transcript of that case. Be aware that the precedent set by some older cases have been overturned by newer cases or changes in the law. The AFM will usually mention which aspect of a case is considered to set a precedent.

A number of AOS precedent cases are mentioned on this page from the AFM:

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm

The Battista case transcript is here:

http://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-65/0-0-0-4012.html#0-0-0-310

Be aware when reading some of these cases that the scenarios can sound pretty scary. Battista was facing deportation for his overstay, and a possible lifetime ban from the US for "preconceived intent to immigrate". He eventually won, but he went through hell dealing with INS. What you should be trying to learn from reading cases like this is what the final conclusion was, why the court or board came to that conclusion, and why it sets a precedent for USCIS in adjudicating future cases.

[Export of Dhaka 8]

I don't think this is accurate. It works for any immediate relative of a US citizen, including spouses, parents, and children. She mentioned a priority date of September, 2001. Going by the latest visa bulletin, this would make them Family 3rd Preference - the married son or daughter of a US citizen, and their derivative spouse and children. The primary beneficiary would still be eligible to adjust status, even with an overstay. If the primary beneficiary can adjust status, then the derivative spouse and children should also be able to adjust status (presuming the derivative children have not aged out).

In Matter of Battista, the alien arrived in the US with a visitor's visa, although he had a Family Preference visa petition pending filed by his father. INS initially found him deportable for overstay, and ultimately denied his AOS for preconceived intent. The BIA overturned this decision, and granted his AOS. This is now a precedent case for USCIS.

The Batista case is much different than OP's scenario. Batista had an approved visa petition before he came here, as well as the single most significant factor why BIA overturned IJs ruling - He was an immediate relative of a USC (spouse of USC). Also, his AOS was denied not because of overstay, but because of preconceived intent to immigrate.

Things are different now. OP and OP's family are NOT immediate relatives of USC. Also, it seems that OP's mother and sister came to US on a visitor visa - so by overstaying, they also have accumulated illegal presence. Because of that, they can't do AOS in the US.

[Export of Dhaka 8]

I don't think this is accurate. It works for any immediate relative of a US citizen, including spouses, parents, and children. She mentioned a priority date of September, 2001. Going by the latest visa bulletin, this would make them Family 3rd Preference - the married son or daughter of a US citizen, and their derivative spouse and children. The primary beneficiary would still be eligible to adjust status, even with an overstay. If the primary beneficiary can adjust status, then the derivative spouse and children should also be able to adjust status (presuming the derivative children have not aged out).

In Matter of Battista, the alien arrived in the US with a visitor's visa, although he had a Family Preference visa petition pending filed by his father. INS initially found him deportable for overstay, and ultimately denied his AOS for preconceived intent. The BIA overturned this decision, and granted his AOS. This is now a precedent case for USCIS.

What is the basis of this statement (highlighted)?

[JimVaPhuong 4,863]

The Batista case is much different than OP's scenario. Batista had an approved visa petition before he came here, as well as the single most significant factor why BIA overturned IJs ruling - He was an immediate relative of a USC (spouse of USC). Also, his AOS was denied not because of overstay, but because of preconceived intent to immigrate.

Things are different now. OP and OP's family are NOT immediate relatives of USC. Also, it seems that OP's mother and sister came to US on a visitor visa - so by overstaying, they also have accumulated illegal presence. Because of that, they can't do AOS in the US.

OP's mom and sis had a priority date, so they had an approved petition. A visa became immediately available to them this month, according to the visa bulletin.

On the other hand, I think you're right about the "immediate relative" and I was wrong. 245(c ) is where the exception for overstay is described for immediate relatives, and it references 201(b). I glanced at 201(b) before I made my post and saw that it defines an immediate relative as the spouse, child, or parent of a USC. I figured this would apply to a family 3rd preference. In rereading the section, it describes "immediate relatives" as not being subject to numerical limits, which wouldn't apply to a family 3rd preference. 201(a)(1) references "family sponsored immigrants", which are described in 203(a). So, if they are "family sponsored immigrants" and not "immediate relatives" then the exclusion in 245(c ) wouldn't apply, and the overstay would make them ineligible to adjust status.

Sorry, prettybobgirl1. Dhaka caught me rushing my research. It appears I was wrong.

[RICARDO4EVA2 195]

My dad and i are not in the US, my mom and sis are and they passed their return date. we are all being filled for bt grandmother and pd is Sept. 2001. We also have a lawyer in US who is on the case, bt no indications were made by lawyer that mom and sis couldnt get status straight in US once PD is current, i also used age out calculator and i havent aged out... we were given the AOS fee info to pay once PD is current....my mom and sis can get straightened out then do interview in US or home country? info im getting is a bit conflicting help!!!!

any update....?