Mom is LPR Can She Petition?

[Angel012110 19]

When I Become a Citizen and Petition My Mom and She Becomes a LPR can She then Petition for my underage brother and sister? or does she need to wait until she becomes a citizen? BTW my brother and sister live in the US but I think that underage kids don't get Penalized Until they turn 18 for Overstaying Right? and I know I Can't Petition them because it would be a 7-10 year wait but what if my mom does as an LPR?

[JayJayH 546]

LPRs can petition for their spouses and/or unmarried children. Since the children are minors, they will be F2A category and it will be a fairly quick process. http://www.uscis.gov/green-card/green-card-through-family/green-card-family-member-permanent-resident

Children under 18 do not accrue "unlawful presence" and are thus not subject to any bar if they leave the US (or become legal) within 180 days after their 18th birthday. This does not mean they cannot be deported in the meantime.

Edited April 17, 2014 by Yang-Ja

[RICARDO4EVA2 194]

agree with the response above.

[belinda63 3,038]

And they have to be in status within the US to adjust status as an LPR petition beneficiary. But she could apply and they leave the US for the medical and interview and receive the visa with no waiver needed if they leave before 18 years of age plus 180 days.

[Angel012110 19]

And they have to be in status within the US to adjust status as an LPR petition beneficiary. But she could apply and they leave the US for the medical and interview and receive the visa with no waiver needed if they leave before 18 years of age plus 180 days.

oh ok Thanks!

[aaron2020 11,651]

How old are your siblings?

Did they enter the US legally?

[Angel012110 19]

They are 15 and 12 and They entered back in 2003 on the VWP.

[JayJayH 546]

They are 15 and 12 and They entered back in 2003 on the VWP.

VWP entry is gray area, as they didn't enter on a visa.

Generally, you cannot file for adjustment of status if you arrive on the VWP. The exception here is for immediate relatives, including minor, unmarried children.

However, on paper they should have filed within the 90 day window of entering on the VWP.

Another factor to keep in mind here is that VWP entrants do not have a right to appeal any decision made by the USCIS, and cannot have their case brought before an immigration judge if their case were to be denied by USCIS. The children are thus currently out of status, without the right to appeal. What this means is that if caught, they can be removed from the US, without a right of appeal, regardless of their age. The "unlawful presence" clock not ticking until age 18 only means that onece deported, they wouldn't be barred from applying for a visa.

This is a tricky situation, and I would proceed with caution. You should consult with an immigration attorney.

Edited April 18, 2014 by Yang-Ja

[belinda63 3,038]

Actually for an LPR the immediate family member must be in status when the visa number becomes available if they wish to adjust status in the US. If the mom were to become a citizen they could adjust status even having overstayed.