The 3 Year Ban Dilemma

[JayT1151 0]

So my dad, a permanent resident, filed an i-!30 application back on Jun 2010, I was 17 years at the time. The application was approved and now we are waiting desperately for the Visa Bulletin to advance to our priority date. The Dilemma is that our lawyer told us that I had to leave the U.S. before I turned 18 years of age, so that I could avoid a ban of some sort. However the lawyer quickly changed her mind when we showed her the other I-130 application my brother, a U.S. citizen, had filed for me back in 1999, at was not here in the U.S. but rather in Mexico. She said that I did not have to leave the country and that I would obtain my permanent residency here in the U.S. I was wondering if this is true? I am desperately trying to obtain my permanent residency since I am a college student and having my permanent residency would surely help a lot.

Please Help to Answer my question and I would be truly grateful!

[JohnR! 5,495]

If you are not sure, ask your lawyer what her plan is, how she intends to navigate your case and what the risks for you are. Now knowing your case in detail, it would be unwise to second guess her advice.

[JayT1151 0]

Ok I sure will Thanks for the Advice in Fact I am making an appointment with her as soon as possible since the Visa Bulletin is getting close to my priority date! Once again thank for the advice!

[Hypnos 6,578]

You have a lot going on here.

It sounds as if you are the beneficiary of an I-130 filed by your USC brother in Mexico in 1999. This puts you in the F4 (sibling - Mexico) preference category, and the most recent visa bulletin (August 2012) shows that the F4 category priority date they are currently processing from Mexico is June 1996. This puts you about three years away from your priority date becoming current (and therefore allowing you to file an I-485 adjustment of status application based upon it; this also assumes there is no retrogression).

It also sounds as if you are the beneficiary of another I-130 filed by your father in June 2010. In this application your preference category is F2A (unmarried son or daughter of an LPR). The latest visa bulletin (linked above) shows that the current priority date for F2A applicants is March 2010, so you are perhaps three months away. The issue with this is that since you have not maintained a lawful status (I assume from your post) then you cannot adjust status from within the US since you are not an immediate relative of a USC and therefore cannot have your overstay forgiven. If you chose to use this I-130 (once it became current) you would have to leave the US to have your interview in Mexico, which would normally trigger a ban which you would then have to apply for a waiver for. However, you only begin to accrue "illegal presence" once you reach the age of 18 and you can only apply for the I-601 waiver as an immediate relative of a USC (spouse of; unmarried child under the age of 21 of; parent of). Since your father is an LPR and not a USC you cannot apply for this waiver, although again since you are under 18 you have not accrued any unlawful presence yet.

So...there are a few options here. First, when do you turn 18? If the priority date for the I-130 filed by your father becomes current before you turn 18, you may want to investigate leaving the US, interviewing in Mexico, obtaining an immigrant visa there and returning to the US on this immigrant visa which will immediately grant you a green card on entry. You should ABSOLUTELY not do this without talking to your lawyer first, because by leaving the US you can run into other issues.

Alternatively, you could wait for the priority date of the I-130 filed by your brother to become current and then adjust status based on that since it qualifies for a 245(i) adjustment and any overstay would be forgiven (unlike your other I-130 where it won't be). As I said above, assuming there is no retrogression (i.e. visa numbers going backwards and not forwards in a certain category) you are looking at around a three year wait by going this route and you would remain out of status during this time.

IANAL and this is only layman advice to consider and talk to your lawyer about. Just giving you my thoughts.

Edited July 15, 2012 by Hypnos

[GlobeHopperMama 95]

I didn't see the above post mention 245(i)/LIFE act, but this is definitely something you will want to look at in your research and a big reason why you MUST NOT LEAVE THE US unless a good, trustworthy attorney says it's the best way. Your brother's petition in 1999 locked you in and grandfathered you under the provision that allows for Adjustment of Status inside the US, no need to seek a visa abroad. Furthermore, your father's 2010 petition would potentially give you the grounds to adjust status much sooner and even if you began accruing unlawful presence towards a ban (which happens once you turn 18 years and 6 months old), if your father naturalizes to become a US citizen, you would be eligible to have the overstay "forgiven". This is all extremely complicated and beyond the scope of the general immigration forum community, but your lawyer is absolutely on to something and most likely knows that having you leave the US at this point would be more difficulty than it's worth.

Also, depending on the circumstances of your entry and school history, you may be eligible to get an EAD and SSN under the newly-announced EADs for DREAMers policy, so you could start having a normal life while you wait for all the rest of this stuff to play out.

If your lawyer isn't communicating clearly or you're doubting the process at hand, you may want to get a second opinion from another lawyer. I highly recommend all three of the lawyers linked in my signature, two of whom offer free initial consultations, so you can check with them risk-free.

[JayT1151 0]

Thanks for the Advice it is really helpful! However at the time my dad filed the I-130 application I was 17 Years of age! I am now 19 by the advice both of you guys gave me it sounds like most likely I am going to get a ban longer than 3 years. However I do think that my lawyer was one to something since she told me that my brothers application would prohibit me from getting a ban. The issue is that I do not want to get a ban since I am currently in college and working so hard to achieve the american dream, getting a ban would just demolish my dreams of continuing with my education.

[JimVaPhuong 4,863]

Thanks for the Advice it is really helpful! However at the time my dad filed the I-130 application I was 17 Years of age! I am now 19 by the advice both of you guys gave me it sounds like most likely I am going to get a ban longer than 3 years. However I do think that my lawyer was one to something since she told me that my brothers application would prohibit me from getting a ban. The issue is that I do not want to get a ban since I am currently in college and working so hard to achieve the american dream, getting a ban would just demolish my dreams of continuing with my education.

Section 245(i) is the last remnants of the Reagan amnesty program. There are several requirements in order to qualify.

First, an approvable petition must have been filed for you before April 30, 2001. It sounds like your brother's petition meets that requirement.

Second, you must have been present in the US on December 21, 2000. Did you enter the US before that date?

Third, you must be eligible to adjust status based on any petition. It doesn't have to be the same petition that was originally filed for you before April 30, 2001. You'll be eligible when the priority date on your dad's petition is current - probably a few more months.

Finally, you have to pay a $1000 fine.

Since you're facing a definite ban if you leave the US, attempting to adjust status under 245(i) sounds like a very good option to try.

[JayT1151 0]

Dear JimVaPhuong unfortunately I was not present here in the U.S. before the date of December 21, 2000. I entered the country on May of 2002. Fortunately tomorrow I have an appointment with my lawyer and which I will discuss with her the path that is lay out for me. She did mention to my parents that my brothers application would prohibit me from going outside the U.S. to gain my permanent residency, however I was not present at that meeting, since I was still in High School. So hopefully everything goes well tomorrow!

[RICARDO4EVA2 194]

Dear JimVaPhuong unfortunately I was not present here in the U.S. before the date of December 21, 2000. I entered the country on May of 2002. Fortunately tomorrow I have an appointment with my lawyer and which I will discuss with her the path that is lay out for me. She did mention to my parents that my brothers application would prohibit me from going outside the U.S. to gain my permanent residency, however I was not present at that meeting, since I was still in High School. So hopefully everything goes well tomorrow!

be sure to fwd any updates here

[GlobeHopperMama 95]

Ohhh. Yeah the physical presence requirement could be a complication, you really have to have been present on that date. I don't think this is a 245(i) case, then, but maybe she has some other plans. The prior petition doesn't "prohibit" you from leaving the country and consular processing, that's definitely not the case. It could protect you from having to do so, but with the facts you've stated, I'm not sure how at this point. However, you might be eligible for the EAD for DREAMers provision when that goes active in maybe a month, and maybe your lawyer wants to attempt the provisional waiver system which is predicted to go active in the fall. This would eventually allow you to file the waiver for your unlawful presence before actually leaving for your interview, so you could go to the consular interview in Mexico with an approved waiver already in hand. Does the lawyer know the part about the fact that you weren't present in December 2000? Hopefully she knows what she's doing, here...

[Hypnos 6,578]

Hopefully his father can naturalise asap.

It would allow him to have the overstay forgiven via the I-130 filed by his father, since he would then qualify as an immediate relative of a USC (until he turned 21). He would not need any waiver in that instance but could just file for AoS immediately after his father naturalised (since visa numbers are always available for immediate relatives of a USC).

He would need to have entered legally though (inspected) and not EWI if it wouldn't be a 245(i) adjustment.

Edited July 17, 2012 by Hypnos

[JimVaPhuong 4,863]

Dear JimVaPhuong unfortunately I was not present here in the U.S. before the date of December 21, 2000. I entered the country on May of 2002. Fortunately tomorrow I have an appointment with my lawyer and which I will discuss with her the path that is lay out for me. She did mention to my parents that my brothers application would prohibit me from going outside the U.S. to gain my permanent residency, however I was not present at that meeting, since I was still in High School. So hopefully everything goes well tomorrow!

Ok, then 245(i) is not possible for you, and there won't be a visa number available for you based on your brother's petition for another 3 years. Even then, you can't adjust status based on that petition, or even on your dad's petition, because you haven't maintained your non-immigrant status. Only people who qualify as an immediate relative of a US citizen (spouse, parent, or minor unmarried child) can adjust status while they're currently out of status.

I have no idea what your lawyer is thinking, but you should pin them down and find out precisely what they're planning. I don't want to accuse your lawyer of being dishonest, but there are some immigration lawyers who will offer options that they know are not possible because, in the long run, they make more money when you're in more trouble.

Forgive me if this was already covered and I missed it, but did you enter the US legally? If so then you might have a chance if your father becomes a US citizen before you're 21, as Hypnos suggested. If not then it's highly unlikely there is any route available to you that wouldn't require you to leave the US first.

[JayT1151 0]

Dear JimVaPhuong Unfortunately I did enter the U.S. illegally! However I do not know if the lawyer knows that I was not here yet at the the time to be able to qualify for the 245(i). The issue is that my parents were the ones that originally talked to her and I think that they did not know to ask the right questions. This is why I need to talk to her personally so that I can ask how she is handling my case. I will also ask if she knows the fact that I would not be able to qualify for a 245(i) since I entered the U.S. after the cutoff date. Dear Hypnos I also do know about the DREAMers provision and I do definitely qualify for that.

[RICARDO4EVA2 194]

Dear JimVaPhuong Unfortunately I did enter the U.S. illegally! However I do not know if the lawyer knows that I was not here yet at the the time to be able to qualify for the 245(i). The issue is that my parents were the ones that originally talked to her and I think that they did not know to ask the right questions. This is why I need to talk to her personally so that I can ask how she is handling my case. I will also ask if she knows the fact that I would not be able to qualify for a 245(i) since I entered the U.S. after the cutoff date. Dear Hypnos I also do know about the DREAMers provision and I do definitely qualify for that.

Since you entered illegally, then you will not have any provisions to adjust status in the United States. You will go home to interview, waiver and hope to get a visa or live in America for ever in the status u are in now.

[JayT1151 0]

I guess that the price I have to pay right? I know that I can still apply for the DREAMers provision recently passed which would give me a work permit for two years! If I cannot adjust my status through my dad then I will wait for my brothers petition to become to become current.