Abandonded Filing or i-130

[Javanef 0]

As a child around the age of 2-4, My grandparent filed for me through my father. It wasnt just for me, the application had my name, my sibling's name and my fathers name on it. I was filed for and was ready to go. My grandma even told me that I did my interview and everything. She was their with me. My dad was not in my country at the time. He was in the US. Because I was too young, he had to prove that he was paying taxes before he could take me and my sibling with him to the USA. But something happened and he was never able to come back for us. So I, being the older one, was sent to the US illegally at the age of 7 years old. I'm currently on DACA and I just really want to know if it is possible to resurrect this i-130? I and currently 21 years of age. My future is at stake. Please, someone anyone Help me.

[KayDeeCee 4,893]

~ Moved from AOS from Family Based Visas to DACA ~

[Asherbabe876 10]

Wow

This is sad.

I hope one of the experienced members can help you

[NigeriaorBust 4,087]

A petition without activity for more than a year is considered abandoned and closed.

[NigeriaorBust 4,087]

A petition without activity for more than a year is considered abandoned and closed.

[aaron2020 11,651]

Hi,

Sorry, you have several problems. There is no way for you to get a green card through this petition.

The petition was for your father. Your father was the primary beneficiary. You were a derivative beneficiary. A derivative beneficiary does not qualify for a visa if the primary beneficiary does not get one.

You are 21. You have aged out. CSPA would not protect you since your father did not seek to acquire a benefit within a year when the PD became current.

Sorry.

[newacct 688]

I don't understand how your dad (the principal beneficiary)'s taxes had to do with your immigration. I'm assuming your dad became a permanent resident through that petition? If so, I don't see why you couldn't have. Assuming your father immigrated through that petition, if you were under 21, you may have been able to immigrate as a derivative beneficiary. But now that you turned 21, you can't be a derivative. You can't take advantage of CSPA either because that requires you to seek to acquire within one year of a visa being available, which you didn't. Basically, at 21 now is a really bad time to start asking about this; if you were in the US since age 7, and I am assuming your father has been in the US this time, why didn't you guys get it resolved sooner?

If you cannot immigrate through your father's petition, you will need another petition to immigrate through. That could be through a relative (including your father, if he is still a US permanent resident or citizen, he can file a new petition for you; or a sibling or child who is a US citizen can petition you; of if you marry a US citizen or permanent resident, your spouse can petition you) or an employer, or even other things like DV lottery. Some categories may have wait times (e.g. if your father as a US citizen or permanent resident petitions you as an over-21 child, there is a wait of about 7 years if you remain unmarried). You can have multiple petitions going at the same time. But you will need at least someone to petition you.

When you get someone to petition you, and you wait until a visa number is available in that category, there are several factors in your situation that will help you get permanent residency:

1. Usually people who entered without inspection do not qualify for Adjustment of Status. However, there is an exception in INA 245(i) and you might qualify for it, because you were once the beneficiary of a petition filed before 2001. If you qualify for it, then entry without inspection and not having status now or in the past will not stand in the way of you doing Adjustment of Status, when and if you have a petition for which there are visa numbers available. To qualify for it, if the petition for your father was filed before January 14, 1998, you qualify for it. If the petition for your father was filed between January 14, 1998 and April 30, 2001, you need to be physically present in the US on December 21, 2000 to qualify for it. You don't qualify for the latter case because you entered the US when you were 7 (around 2002), so you were not physically present in 2000. So you can only qualify if the petition was filed before January 14, 1998. Your description is not clear enough to tell whether that is the case. You mentioned age 2-4; that would be around 1997-1999; it's also not clear whether that was when a visa number became available, when the petition was approved, or when the petition was filed. It's when the petition was filed (postmarked) that counts.
2. If you do not qualify for 245(i), you do not qualify for Adjustment of Status because you entered without inspection. If you are petitioned by a US citizen spouse or US citizen child, you will be in the Immediate Relative category, and can take advantage of the DACA-AP route to get a legal entry and do Adjustment of Status -- get Advance Parole based on DACA and a need to visit ailing or sick relatives abroad, return to the US on Advance Parole, and do Adjustment of Status.
3. If you cannot do Adjustment of Status, the alternative is Consular Processing abroad. The usual problem with people in this situation is that leaving the US will trigger a ban if you have accrued at least 180 days of "unlawful presence". The good thing is that you may not have unlawful presence. You do not accrue unlawful presence for the purposes of this ban while under 18. You also do not accrue unlawful presence while under DACA. If you got DACA before you were 18 (DACA started 4 years ago, when you were 17) or within 180 days of turning 18, then you do not have enough unlawful presence to trigger a ban upon leaving the US. So when and if you have a petition for which there are visa numbers available, you can just go abroad for the interview, and come back soon with an immigrant visa. Note that if DACA is ever cancelled or revoked, you will start accruing unlawful presence again, so if that happens you should leave the US before you have accrued 180 days of unlawful presence.