Overstayed on Visitors Visa while I-130 was in process

[ellerich 0]

My cousin came to the US in August 2010 with his mother who is a LPR on a B visa. She started the 130 process i believe back in their home country. I believe he returned home once in 2011 before the 6th month of his stay & then came back to the US. Since then he has not been able to return again before his 6th month because his Visa expired. He is now in the country illegally , with an I-130 that is about to be approved. He came when he was 16 & will turn 18 in June of this year. What should his mothers next steps be to getting him legalized ? Is there any provision that will allow him leniency to stay in the country ? Can she file his 485 when 130 is approved ? Will they have to send him back to his home country ? I would appreciate the advice.

[canadian_wife 1,822]

Someone please correct me, but I do not think he can adjust status from a petition from an LPR

He will also begin accuring illegal presence after his 18th birthday

good luck

[ellerich 0]

Someone please correct me, but I do not think he can adjust status from a petition from an LPR

He will also begin accuring illegal presence after his 18th birthday

good luck

He is already illegal, if i'm not mistaken, as he has no status & has overstayed on his visa. Are you saying his mother has to be a USC for her to file a 485 for him ?

[caly 48]

He is already illegal, if i'm not mistaken, as he has no status & has overstayed on his visa.

I think what canadian_wife was trying to say was that he will only be subjected to the 3 or 10 year bans after his 18th birthday.

After his 18th birthday, if he overstays for more than 180 days but less than 1 year, he will receive a 3 year ban from re-entering the US. If the overstay is more than a year, he will incur a 10 year ban.

[Hypnos 6,576]

To be able to adjust status within the US he would need to either (i) maintain a lawful nonimmigrant status (he hasn't done this; even though minors do not accrue illegal presence until they turn 18, he has failed to maintain a lawful presence), (ii) file for AoS under 245(i) (he doesn't qualify for this either), or (iii) file for AoS as an immediate relative of a US citizen (he cannot do this either, at the moment).

In short, he can file for AoS once his mother becomes a US citizen (if he is under 21 at that time), but he will remain out of status until then. Alternatively, he could pursue an immigrant visa overseas once his I-130 has been approved, since he accrues no unlawful presence until he turns 18, and it would probably be a very simple matter to have his interview overseas, have his immigrant visa issued, and then re-enter the US.

I would recommend he speak to an immigration lawyer to confirm that.

Edited January 15, 2013 by Hypnos

[ellerich 0]

To be able to adjust status within the US he would need to either (i) maintain a lawful nonimmigrant status (he hasn't done this; even though minors do not accrue illegal presence until they turn 18, he has failed to maintain a lawful presence), (ii) file for AoS under 245(i) (he doesn't qualify for this either), or (iii) file for AoS as an immediate relative of a US citizen (he cannot do this either, at the moment).

In short, he can file for AoS once his mother becomes a US citizen (if he is under 21 at that time), but he will remain out of status until then. Alternatively, he could pursue an immigrant visa overseas once his I-130 has been approved, since he accrues no unlawful presence until he turns 18, and it would probably be a very simple matter to have his interview overseas, have his immigrant visa issued, and then re-enter the US.

I would recommend he speak to an immigration lawyer to confirm that.

I appreciate the information, thank you very much

[velrich 50]

He need to go back to his country before he turns 18. In this way it is likely that he will get a waiver for overstaying.

[ellerich 0]

He need to go back to his country before he turns 18. In this way it is likely that he will get a waiver for overstaying.

Thanks velrich, Are you aware of what type of waiver he may be granted ? & what about the fact that his visa is expired? does that have to do with anything ?

[Hypnos 6,576]

Provided he leaves before he turns 18 he will need no waiver because he will have accrued no illegal presence.

Edited January 18, 2013 by Hypnos

[Boiler 45,486]

Since then he has not been able to return again before his 6th month because his Visa expired.

You are not checked on the way out, only on the way in.

[velrich 50]

Thanks velrich, Are you aware of what type of waiver he may be granted ? & what about the fact that his visa is expired? does that have to do with anything ?

Its automatic and does not have to be applied in the instance that he left before he became 18. No illegal presence accrued.