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

[T Money 0]

Hello and thank you in advance to all who reply and read my posting.

Client is 16 y/o from Greece. He was given a B1/B2 visa in 2001 when he was 6. The visa allowed him multiple entries for 10 years (visa expired on 7-30-11) but he couldnt stay longer than 6 months at a time.

He was 6 when he arrived in USA on Dec. 14, 2001 traveling with his USC sister. His parents wanted to extend his tourist visa on or around May 2002. When they sent the application Immigration asked for more documents (not sure what docs they asked for). The parents never responded to this RFE from Immigration. He has been here ever since attending school and being a typical kid. In the meantime his I-94 was misplaced/lost.

His mother is now a citizen and wants to petition her son so he can get his green card. They sent form I-102 to USCIS to get his lost I-94 replaced. The mother sent his passport with a date-stamp on 12-14-2001 that he got at JFK. They also sent his USC sister's passport showing her entry on 12-14-2001. USCIS sent a letter back saying they had no evidence saying he entered the country. Even with this USCIS said they required more evidence. My questions are:

1---At this point I believe the child has been out of status since May 2002. Am I wrong?

2---Wouldn't it just be better to forget replacing the I-94 and just do an I-130 since the mother is a USC and he is 16?

3---Or would it be better to get his I-94 then do the I-130?

Any advice on how I should proceed would be appreciated. If you need more information please ask me. Thank you.

Edited October 21, 2011 by T Money

[Aloe 10]

Your Client?

I sure hope you are not charging these people to help them with this situation and then coming to a public forum to ask for advice.

If you are "representing" these people shouldn't you KNOW what you are doing?

[OKflyboy 35]

I'd go with I-130 and AOS. Since his mother is a USC, making him an immediate relative, he can adjust status if he's already in the US. USCIS does not specify how and when he has to have entered the USA. The time out of status usually doesn't matter with the immediate relatives. My kids were out of status for 2.5 years before we applied for AOS and USCIS never even mentioned it.

I'm not sure whether USCIS will necessarily want the I-94, though... My children had them sitting in their passports.

[T Money 0]

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.

[T Money 0]

Thank you for your reply OKFlyboy

I agree. I would think that the USCIS would not stress the I-94 when filing an I-130 and I-485. Thanks again.

[NickD 203]

Gather somebody petitioned for the mother, why was this kid ignored? Should have been petitioned at the same time. A young girl came to this section about a year ago, with a long overstayed visa, her stepdad never petitioned for her and she just turned 18. A child is in no position to take care of immigration matters! This thread was moved to another section, followed it, and my heart went out to her. But she never came back, maybe the USCIS found and deported her for all we know. What about this boy's sister? Same boat?

Same happened to two kids going to the same university as my stepdaughter, were here since they were 2 and 3 years old. Last I heard they were in court for deportation, but many objected since this is the only country they knew. Never did learn what happened to them either. How can parents be so irresponsible? Hopefully the USCIS will show some mercy to these kids. File that I-130 and hope for the best.

[T Money 0]

Gather somebody petitioned for the mother, why was this kid ignored? Should have been petitioned at the same time. A young girl came to this section about a year ago, with a long overstayed visa, her stepdad never petitioned for her and she just turned 18. A child is in no position to take care of immigration matters! This thread was moved to another section, followed it, and my heart went out to her. But she never came back, maybe the USCIS found and deported her for all we know. What about this boy's sister? Same boat?

Same happened to two kids going to the same university as my stepdaughter, were here since they were 2 and 3 years old. Last I heard they were in court for deportation, but many objected since this is the only country they knew. Never did learn what happened to them either. How can parents be so irresponsible? Hopefully the USCIS will show some mercy to these kids. File that I-130 and hope for the best.

Thank you for the response. The USC sister was born here. The 16 y/o son was born in Greece. I dont know why he was born there. My fear is giving them the wrong advice and then the kid runs into trouble with USCIS. But also since they sent out a I-102 and USCIS said they have no record of him entering the country, then USCIS or ICE would have come after him already since they have all his info.

But im just going to keep checking the post and maybe someone can give me a more definite answer. I know theres a solution for this young kid.

[aleful 1,905]

Thank you for your reply OKFlyboy

I agree. I would think that the USCIS would not stress the I-94 when filing an I-130 and I-485. Thanks again.

the child has to prove that he or she entered legally into the country to adjust status in country, age doesn't matter. If he cannot prove that he entered legally, he will go through consular porcessing and have the interview in his or her country of origin.

a handful of officers might accept the stamp in the passport as proof, but many others don't. they want the actual i94. the problem could be that they already have a letter stating that they didn't even know he was here in the US.

the proof is the i94.

[T Money 0]

the child has to prove that he or she entered legally into the country to adjust status in country, age doesn't matter. If he cannot prove that he entered legally, he will go through consular porcessing and have the interview in his or her country of origin.

a handful of officers might accept the stamp in the passport as proof, but many others don't. they want the actual i94. the problem could be that they already have a letter stating that they didn't even know he was here in the US.

the proof is the i94.

But he has his passport stamped with the date 12-14-2001. His USC sister's passport is also stamped with the same date. She was the one who brought him from Greece.

[Brother Hesekiel 2,236]

1---At this point I believe the child has been out of status since May 2002. Am I wrong?

2---Wouldn't it just be better to forget replacing the I-94 and just do an I-130 since the mother is a USC and he is 16?

3---Or would it be better to get his I-94 then do the I-130?

He's out of status since June 15, 2002. Doesn't matter, as unlawful presence is not accumulated until the child becomes an adult, which is at age 18.

Ideally an I-94 would be nice, but you can't give them what you don't have and can't get. The system based on the INA change of September 30, 1996 was up and running some time by 1998, so it's weird that they don't have a record for him.

In any case, the I-94 serves only one purpose: showing when and how the beneficiary entered the U.S. If he has a passport with an entry stamp that should do the trick. Yes, it's within the discretion of the I.O. to accept that as proof, but why shouldn't he?

I would go ahead and file I-130, I-485, I-864, and G-325a, all concurrently and think positive.

[Krikit 1,165]

Sometimes (a lot of times), when the USCIS clerk rifles through an application and doesn't see a specific item (whether it is there or not.... which happens constantly), they don't dig any further than that and send out an RFE. They have a quota to fulfill and this gives them a tick and a buffer and on to the next case. This is why, in my covering letters, I specified each item they requested and what evidence I was sending them to fulfill that requirement. It's likely the parents sent the original I-94 with the visa extension request if they still have the original passport. If they have already sent in the I-94 replacement application.... and if you are working against a deadline with the RFE I would include another copy of the entry stamp (highlighted and referenced in the cover letter) as well as a copy of the I-94 replacement documentation.

Sorry if I read this wrong. I'm tired and not firing on all cylinders at the moment. lol

Oh, and what Brother Hesekiel says is correct.... children don't start accumulating overstay days until they reach the age of 18. Good luck.

[T Money 0]

He's out of status since June 15, 2002. Doesn't matter, as unlawful presence is not accumulated until the child becomes an adult, which is at age 18.

Ideally an I-94 would be nice, but you can't give them what you don't have and can't get. The system based on the INA change of September 30, 1996 was up and running some time by 1998, so it's weird that they don't have a record for him.

In any case, the I-94 serves only one purpose: showing when and how the beneficiary entered the U.S. If he has a passport with an entry stamp that should do the trick. Yes, it's within the discretion of the I.O. to accept that as proof, but why shouldn't he?

I would go ahead and file I-130, I-485, I-864, and G-325a, all concurrently and think positive.

Thats what i was thinking also of just telling them to file all four forms at the same time and hope for the best. he just turned 16 on 8-31 so he has 22 months before turning 18. not that USCIS probably cares but he has no one in Greece so its not like he can do his processing over there at the consulate. not that i would suggest he leave the US lol .

Thank you BROTHER and KRIKIT for your responses.

[NickD 203]

Thats what i was thinking also of just telling them to file all four forms at the same time and hope for the best. he just turned 16 on 8-31 so he has 22 months before turning 18. not that USCIS probably cares but he has no one in Greece so its not like he can do his processing over there at the consulate. not that i would suggest he leave the US lol .

Thank you BROTHER and KRIKIT for your responses.

Just looked up that I-94 in my stepdaughters' passport, just a small piece of paper half stapled into her passport book with some scribbling on it. Can barely make it out, these are issued at the POE when you come in in a line of about 300+ people.

Its a standard form, top line is the last name, middle line is the first name and the date of birth, bottom line is the country of origin. Has the same entry stamp on it as in her passport, her class of visa, and the ending date scribbled in. I see where I carefully removed it using the same staple to put it back in, just one tiny staple, scanned it and sent it in as requested evidence. She was 13 years old at the time, wasn't aware that an overstay wasn't against her until she was 18, but filed all the papers, she was given six months that to me was a deadline. Although for around 300 bucks at the time, could have extended it. Everything was done before that deadline.

Being an ignorant natural born US citizen, the I-94 was entirely new to me, her visa was also good for ten years. Its my understanding that the only pertinent bit of information on the I-94 is that expiration date hand scratched in. Also its my understanding, that POE person can write in any date they so feel like at the time. In some cases, will want to see the return airline ticket, maybe five days later and write in that date. I really have no idea where they get these dates from or if there is even a law for a maximum stay with that I-94. Seems like they could even put in the date that the visa expires at.

There is NOT even a space on that form to write in the expiration date on that I-94, just scribbled in on a blank spot. My point is that the only new information the I-94 provides is that expiration date, and this date is entirely arbitrary. So sounds absurd that someone is making a big deal out of it. Especially for a child where that date doesn't seem to make a damned bit of difference. That POE person is just one person, and similar to your IO at the citizen interview can be real nice considering all what you been through to get that far, or a complete harda$$, making your life miserable. I very carefully removed that I-94 for scanning and replaced it using the same staple, ha, even wiped off my fingerprints.

Technically, this boy through his mom is already a US citizen, but that AOS stage, every expensive by the way, was bypassed. The fees for the I-130, I-485, I-864, and G-325a have greatly increased, but I assume a very expensive I-693 must also be attached. Don't know about your health insurance, mine doesn't cover that, strictly out of pocket expense. Same as a FAA certified doctor, just quickly reviews my medical records, has me hop on my left and right foot ten times, then says that is 900 bucks, use to be 20 bucks.

I suppose you have to go through that I-130 stuff so the USCIS can get their fees and a replace copy of that seemingly worthless I-94 that doesn't count for a minor. I did do a lot of shopping around for a USCIS approved doctor, had all of her medical records translated from the day she was born. Found one 300 miles away that would use those where most of them wanted to repeat all those tests. Quotes ranged from 500 to 5,000 bucks, a huge difference. Was well worth driving that extra distance. No longer concerned about getting robbed in a dark alley, have doctors and the USCIS to do that for me. And the rest of us as well.

[T Money 0]

NickD

Thank you for sharing your story and your thoughts on my situation. I believe that getting a I-94 is useless since his mother just wants it to fill out the I-130 she plans on doing anyway. It will be expensive to get all those forms sent to USCIS but I think thats her best option.

I have been trying to search the Immigration and Nationality Act (INA) to see where the section of law is for minors out of status. I would like to see what it says and if can made me give me a more clear answer.

Thanks again

[JimVaPhuong 4,863]

Just looked up that I-94 in my stepdaughters' passport, just a small piece of paper half stapled into her passport book with some scribbling on it. Can barely make it out, these are issued at the POE when you come in in a line of about 300+ people.

Its a standard form, top line is the last name, middle line is the first name and the date of birth, bottom line is the country of origin. Has the same entry stamp on it as in her passport, her class of visa, and the ending date scribbled in. I see where I carefully removed it using the same staple to put it back in, just one tiny staple, scanned it and sent it in as requested evidence. She was 13 years old at the time, wasn't aware that an overstay wasn't against her until she was 18, but filed all the papers, she was given six months that to me was a deadline. Although for around 300 bucks at the time, could have extended it. Everything was done before that deadline.

Being an ignorant natural born US citizen, the I-94 was entirely new to me, her visa was also good for ten years. Its my understanding that the only pertinent bit of information on the I-94 is that expiration date hand scratched in. Also its my understanding, that POE person can write in any date they so feel like at the time. In some cases, will want to see the return airline ticket, maybe five days later and write in that date. I really have no idea where they get these dates from or if there is even a law for a maximum stay with that I-94. Seems like they could even put in the date that the visa expires at.

There is NOT even a space on that form to write in the expiration date on that I-94, just scribbled in on a blank spot. My point is that the only new information the I-94 provides is that expiration date, and this date is entirely arbitrary. So sounds absurd that someone is making a big deal out of it. Especially for a child where that date doesn't seem to make a damned bit of difference. That POE person is just one person, and similar to your IO at the citizen interview can be real nice considering all what you been through to get that far, or a complete harda$$, making your life miserable. I very carefully removed that I-94 for scanning and replaced it using the same staple, ha, even wiped off my fingerprints.

Technically, this boy through his mom is already a US citizen, but that AOS stage, every expensive by the way, was bypassed. The fees for the I-130, I-485, I-864, and G-325a have greatly increased, but I assume a very expensive I-693 must also be attached. Don't know about your health insurance, mine doesn't cover that, strictly out of pocket expense. Same as a FAA certified doctor, just quickly reviews my medical records, has me hop on my left and right foot ten times, then says that is 900 bucks, use to be 20 bucks.

I suppose you have to go through that I-130 stuff so the USCIS can get their fees and a replace copy of that seemingly worthless I-94 that doesn't count for a minor. I did do a lot of shopping around for a USCIS approved doctor, had all of her medical records translated from the day she was born. Found one 300 miles away that would use those where most of them wanted to repeat all those tests. Quotes ranged from 500 to 5,000 bucks, a huge difference. Was well worth driving that extra distance. No longer concerned about getting robbed in a dark alley, have doctors and the USCIS to do that for me. And the rest of us as well.

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.