Can daughter of USC adjust status under these conditions?

[Bengalita 13]

LPR mother filed I-130 for EWI daughter who was under 21 (in 1991). Daughter reached 21, aged out, and then gets married to EWI. Daughter no longer eligible to AOS. Just recently, mother became USC. Daughter still married.

True or False.......... Since Immigration is now working the petitions of 1993 (Mexico), daughter is eligible to AOS.

True or False...... daughter's husband will be able to AOS along with wife as a derivative spouse.

Thanks!

[JimVaPhuong 4,863]

LPR mother filed I-130 for EWI daughter who was under 21 (in 1991). Daughter reached 21, aged out, and then gets married to EWI. Daughter no longer eligible to AOS. Just recently, mother became USC. Daughter still married.

True or False.......... Since Immigration is now working the petitions of 1993 (Mexico), daughter is eligible to AOS.

True or False...... daughter's husband will be able to AOS along with wife as a derivative spouse.

Thanks!

Neither daughter nor son in-law can adjust status based on any family visa petition because of the EWI. It doesn't matter what the status of the petition or priority date is. The three primary requirements for adjustment of status are that the applicant was inspected and admitted or paroled into the United States, and that the applicant has maintained their non-immigrant status while in the United States, and that the applicant has not worked without authorization in the United States. The last two requirements are waived if the applicant qualifies as an immediate relative of the US citizen petitioner. The first requirement is not waived for any family based petition, though it can be waived for VAWA self-petitioners and asylum applicants.

If the daughter married before the mother became a US citizen then the petition is dead - kaput. There is no visa category for the married son or daughter of an LPR. If the mother became a US citizen before the daughter married then the petition survives, and the visa category is now family preference F3.

The daughter will need a waiver for the unlawful presence. USCIS recently published a proposed rule change for I-601 waivers. If accepted, this rule change would permit USCIS to adjudicate I-601 waivers while the alien was present (even unlawfully present) in the US. If the I-601 waiver is approved then the applicant can leave the US and apply for the visa at the US consulate in their country. You can read about the proposed rule change here:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e784875decf56310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

My reading of this rule change is that it will only apply to visa applicants in an immediate relative category. The daughter in this case is no longer an immediate relative. She's in a family preference category. The daughter may have to leave the US in order to submit the I-601 waiver application. I don't know if an I-601 granted for the daughter would also apply to the son in-law, but I suspect it would not.

Edited April 3, 2012 by JimVaPhuong

[JimVaPhuong 4,863]

Forgot to mention...

Daughter qualifies under 245(i) because a petition was submitted before April, 2001. However, she can't adjust status based on that petition because she isn't lawfully present, and the lawful presence requirement is only waived for immediate relatives. If she had married a US citizen she could have adjusted status based on that marriage, and had the EWI waived under 245(i) by paying a $1000 fine.

[Bengalita 13]

This information you provided is wrong, my friend. This applies to people who are trying to get their residency and are NOT under the 245-i rule. The person I mentioned in my question is definitely 245-i eligible.

[Bengalita 13]

Forgot to mention...

Daughter qualifies under 245(i) because a petition was submitted before April, 2001. However, she can't adjust status based on that petition because she isn't lawfully present, and the lawful presence requirement is only waived for immediate relatives. If she had married a US citizen she could have adjusted status based on that marriage, and had the EWI waived under 245(i) by paying a $1000 fine.

Ah. Now you're making a little bit of sense. However, I must disagree with you about the daughter (3rd preference)not being able to adjust status because she is unlawfully present. It's true, she is not considered an "immediate family member" of her mother (for Immigration purposes) But, remember, she is 245-i eligible, and once her priority date comes available (which it's already available actually), she can pay the $1000 fine and adjust status. The WHOLE POINT of beign 245-i eligible is to adjust status in the USA precisely because such people ARE NOT lawfully present. It doesn't just apply to EWI people who marry US Citizens. It applies to all EWI people who are have a family or employer petition submitted on or before April 30, 2001 and who are otherwise not deportable.

If you have some case law that shows that I am in error, please post it here. I welcome corrections.

My question is: Being how she can adjust status under 245-i, can her husband also adjust status along with her as a derivative?