Mother entered with tourist visa, but child EWI, will the child be able to AOS inside USA?

[Rick_ES_USA 13]

I have been asked for advice on this case, but I am not very sure. So I think It is a good idea to put it out there and get some feed back from the experts here at VJ.

This friend of mine came to USA with a tourist visa back in 2006, overstayed her visa and has been living in the US ever since. Before going to the USA, back in her country, she had shared custody of her 6 years old son that she had with a man that she never married. But she was the main caretaker of the kid. For some reason she was never able to get her son a tourist visa (don´t know exactly why), but the thing is that, as a mother, she wished to be with her son very badly, but once she was in the U.S. she could not go back to her country either. So she decided to bring her son to the USA illegally, and the kid entered without inspection, his biological dad, back in his country was ok with the child reuniting with his mother. A couple years later she fell in love with a USC and got married and has been living happily married for more than 2 years with her husband and her kid in the USA. So now they want to file for her GC and it seems that she is going to be able to do AOS with no problem inside the USA. But my question is: Is her minor child who EWI going to be able to do AOS also inside the USA as a derivative? The kid is around 11 years old now. Or is the child going to have to go back to his country and do consular processing? Please keep in mind that the kid is still a minor and therefore the 10 years ban does not apply in this case.

Will appreciate all of your comments

[Harpa Timsah 13,258]

No, he won't be able to adjust. How did the mother enter on a tourist visa while her kid EWI'd? Having a tourist visa doesn't mean you are inspected, did she EWI too?

She will also have to show that she has custody of her child, and it sounds like she doesn't (you said joint custody).

Edited May 6, 2011 by Harpa Timsah

[Little_My 464]

If I understood the initial post correctly, the mother first entered the US without the child, on a tourist visa - and then, somehow, had the child sneaked in the country without inspection. So the mom came with a non-immigrant visa, the child came later without inspection.

[Rick_ES_USA 13]

If I understood the initial post correctly, the mother first entered the US without the child, on a tourist visa - and then, somehow, had the child sneaked in the country without inspection. So the mom came with a non-immigrant visa, the child came later without inspection.

Correct!

[JimVaPhuong 4,863]

No, the child cannot adjust status because of the EWI. However, since he's a child there are no adverse consequences to his immigration violations. He should return to his home country, and his US citizen step-parent should petition for him as an immediate relative. He can be back in the US within a year, and receive a green card.

[Rick_ES_USA 13]

No, the child cannot adjust status because of the EWI. However, since he's a child there are no adverse consequences to his immigration violations. He should return to his home country, and his US citizen step-parent should petition for him as an immediate relative. He can be back in the US within a year, and receive a green card.

Thank you JimVaPhuong! … this is a very good answer.

Honestly this is how I understood it from the beginning, but I just wanted to make sure. So my advice to my friend will go along this same lines!

[ewi minor 0]

the child will have to return to his home country for consular processing, he doesnt begin to accrue illegal presence untill he is 18 years. you can submit the papers while hes here and send him home when you get an interview date

[Brother Hesekiel 2,236]

An EWI cannot adjust status (something that always happens from inside the US) as he has no status to adjust from. An EWI thus would always have to leave the US and apply for an immigrant visa based on an I-130 petition of a qualifying relative. If somebody has accumulated unlawful presence during their time in the US, leaving the US would usually trigger the 3 or 10-year bar.

However, Uncle Same realizes that children have no say in where their parents take them, which is why unlawful presence is not recorded until the child becomes an adult, which is at age 18. For that reason I usually advise EWIs who are also good students to apply at the local community college as an international student (they will automatically approved with a US High School Diploma), get an I-20, leave for Mexico, and then apply for a student visa with which they enter the US again, lawfully. Even if they drop out of school after only 1 day, they are eligible to adjust status, based on having entered the US with inspection.

That all works until 179 days after the 18th birthday only, as day 180 would trigger the 3-year bar.

In this case, the petition for the child could be filed, and once enough time has progressed that the petition is forwarded from NVC to Juarez, the child travels there with a parent or authorized guardian, is being interviewed, and gets his visa shortly after.