Adjusting in U.S.

[kgoop 0]

Long story cut short, my father brought me into the US when i was 6 and we overstayed our visa. I am 29 now and my father became a US resident a filed a I-130 for me back in 2007. In 2009 i received my approval for I-130 with a Aug 2007 Priority date. This past yr he became a US Citizen and upgraded my case to a F1 Visa. Soon after NVC contacted me to submit the AOS and I-864EZ. I submitted the fee for the AOS but realized if i continue processing thru NVC they would process my case in my consulate country. I dont want to go back to my consulate country as it may trigger the 10 yr band. I emailed NVC and requested that my case be processed in the US. They emailed me back and said they will hold my case until USCIS request it. I read that if i do not contact NVC within 1 year of my processing date, they will void all fees and case. So does this mean i need to send an email to NVC every year until my priority date is current and then i can adjust in the US after submitting the 245i? NVC is requesting i send payment for the I-864EZ in an email i recieved from them today.

[Penguin_ie 5,997]

*** Moving from NVC to AOS from Tourist etc visa ****

[Hypnos 6,578]

You cannot do an in-country adjustment of status because you were out of status for a prolonged period of time and only being an immediate relative of a US citizen "forgives" this. An immediate relative is defined as a spouse of, minor child (under 21) of, parent of or widow/er of (if within two years of spouse's death) a US citizen. You do not qualify.

You further do not qualify for a 245(i) adjustment, where that overstay would be forgiven, because neither a labour certification or an immigrant petition was either pending or approved on 30th April, 2001.

Once your priority date becomes current, you will have to interview at the embassy you have requested. This will be denied, due to your extensive overstay and a ten year bar from the US will then be activated as soon as you leave. You may qualify to file for an I-601 waiver of this inadmissibility, but would need to (1) file for this from outside the US, and (2) demonstrate that it would be a hardship to your parent if you were not admitted to the US. This is a high bar to reach.

I strongly suggest you have a consultation with an AILA-certified immigration attorney at your earliest convenience.

Edited October 3, 2012 by Hypnos

[Mishooo 0]

you may qualify for the new Obama law and you can get a work permit and maybe later GC...

[kgoop 0]

you may qualify for the new Obama law and you can get a work permit and maybe later GC...

I submitted my DACA application already for Deferred Action. Hopefully i get my EAD within the next few days/weeks.

My father did have a petition for me Before April 30 2001 thru a religious application, i forgot exactly what it was. So since we applied before the 2001 date, i think i should be able to file the 245(i) form. I have a friend with a similar situation where his sister filed for him back in 2004 and he filed for 245(i) and received his work permit. He is currently waiting for the green card. This whole process is confusing to me.

[Hypnos 6,578]

You would need to find out precisely what form was filed by your father.

A consultation with an immigration lawyer would still be an excellent idea.

[Brother Hesekiel 2,236]

I suggest you file for DACA and EAD now, and hope the DREAM Act will become law. Otherwise, wait 'til your dad becomes a USC at which point you become eligible for AoS. The I-130 never expires.

[Hypnos 6,578]

Poor advice.

Her father is already a US citizen, however she is no longer classified as an immediate relative and so her overstay is not forgiven, as I alluded to above. She can perhaps overcome it with an I-601 waiver, but a consultation with an immigration attorney would be a great idea.

She would also need to see what paperwork her father filed for her before April 2001 to see if she qualifies for a 245(i) adjustment, which would also forgiven the overstay.