Are my parents here legally or illegally and what Can I do to help my sister?

[Jen45566 0]

So, I am married to a USC and before I got married I was on a F-1 visa and completely detached from my family’s status. I am a green card holder and will naturalize as soon as I am able to . I am 21 years old. I don’t know if I have to be a certain age to sponsor someone.

 

My family on the other hand has been here since the 1990s on a F-1 visa and my sister is still an F-2 visa holder. She will be 21 in a year and a half. Now, my dad doesn’t go to school and works. My parents have pretty much screwed us to the point where we did not qualify for DACA and we have lived in the states our whole lives and cannot speak our home language. We simply cannot go back home. 

 

 

They are also unwilling to pay for our education because “all the American kids pay for their own” So, my little sister cannot pay for school (she unfortunately did not receive any scholarships) because she can’t work besides the odd cash jobs here and there and we don’t qualify for aid or loans. So, she won’t be able to enter the work visa lottery after college. We have also tried to enlist in the army but by the time we were both old enough, they have closed their MAVNI program. Anyways, I’m saying all this because I feel like just by ourselves we are at a dead end. My sister has been dating but understandably she has not found any one she wants to marry.  

 

Anyways, I know I still have a year before I could help my sister but is it possible? Can I file an AOS on her behalf? I am also worried because when I filed my paperwork even if I was out of status I did not have any  unlawful presence  but I read somewhere that USCIS is planning to change the law where F-1 students will start gaining unlawful presence starting August.  Is there anyway I could help her stay here? If I do file an AOS for her can she stay here in the states like I did even if she is out of status? Anyone, go through something similar?

Edited June 5, 2018 by Jen45566

[Roel 7,192]

I believe you cannot file aos for sibling. 

 

You can only file AOS for parents but with their immigration history I have doubts that it's possible. 

But I'm sure others will know better. 

[Umka36 781]

Once you Naturalize, you can file a petition for your sister. The current wait for the F4 visa is over 14 years depending on country. The bad news is that she cannot AOS within the US as only immediate relatives can and siblings don't fall under this category. 

 

Immediate Relatives

Immediate relatives include:

• The spouses of U.S. citizens,
• The children (unmarried and under 21 years of age) of U.S. citizens,
• The parents of U.S. citizens at least 21 years old, and
• Widows or widowers of U.S. citizens if the U.S. citizen filed a petition before his or her death or if the widow(er) files a petition within 2 years of the citizen’s death.
•  

https://www.uscis.gov/tools/glossary/immediate-relatives

 

She will incur a 10 year ban if she leaves the US. She has very limited options in my opinion to remain legally in the US. Maybe other can provide other options.

Edited June 5, 2018 by Umka36

[Teemo 252]

38 minutes ago, Jen45566 said:

So, I am married to a USC and before I got married I was on a F-1 visa and completely detached from my family’s status. I am a green card holder and will naturalize as soon as I am able to . I am 21 years old. I don’t know if I have to be a certain age to sponsor someone.

 

My family on the other hand has been here since the 1990s on a F-1 visa and my sister is still an F-2 visa holder. She will be 21 in a year and a half. Now, my dad doesn’t go to school and works. My parents have pretty much screwed us to the point where we did not qualify for DACA and we have lived in the states our whole lives and cannot speak our home language. We simply cannot go back home. 

 

 

They are also unwilling to pay for our education because “all the American kids pay for their own” So, my little sister cannot pay for school (she unfortunately did not receive any scholarships) because she can’t work besides the odd cash jobs here and there and we don’t qualify for aid or loans. So, she won’t be able to enter the work visa lottery after college. We have also tried to enlist in the army but by the time we were both old enough, they have closed their MAVNI program. Anyways, I’m saying all this because I feel like just by ourselves we are at a dead end. My sister has been dating but understandably she has not found any one she wants to marry.  

 

Anyways, I know I still have a year before I could help my sister but is it possible? Can I file an AOS on her behalf? I am also worried because when I filed my paperwork even if I was out of status I did not have any  unlawful presence  but I read somewhere that USCIS is planning to change the law where F-1 students will start gaining unlawful presence starting August.  Is there anyway I could help her stay here? If I do file an AOS for her can she stay here in the states like I did even if she is out of status? Anyone, go through something similar?

Tough situation.

 

Best option for your sister to stay here is to eventually marry a US Citizen for love, as you did, otherwise it is at least 14 years to petition her as a sibling (much longer if from Philippines or Mexico), and she would have to leave the US then incur issues with the 10 year ban etc. There is no forgiveness for unlawful overstays with a sibling.

 

You can petition for your parents as soon as you naturalize, their overstay is forgiven as an immediate relative and they can adjust within the country without leaving and it would happen within a year. They are immediate family so there are no limits so their priority date is always current. 

 

Any overstay you accrued yourself was forgiven through adjustment of status through your USC immediate relative (spouse). 

 

I don't understand the title of this thread - "Are my parents here legally or illegally" - why would you think they are here legally when they have overstayed their visa by decades? If they had received lawful status such as permanent residency you and your sister would have received it too. 

[Jen45566 0]

10 minutes ago, Teemo said:

Tough situation.

 

Best option for your sister to stay here is to eventually marry a US Citizen for love, as you did, otherwise it is at least 14 years to petition her as a sibling (much longer if from Philippines or Mexico), and she would have to leave the US then incur issues with the 10 year ban etc. There is no forgiveness for unlawful overstays with a sibling.

 

You can petition for your parents as soon as you naturalize, their overstay is forgiven as an immediate relative and they can adjust within the country without leaving and it would happen within a year. They are immediate family so there are no limits so their priority date is always current. 

 

Any overstay you accrued yourself was forgiven through adjustment of status through your USC immediate relative (spouse). 

 

I don't understand the title of this thread - "Are my parents here legally or illegally" - why would you think they are here legally when they have overstayed their visa by decades? If they had received lawful status such as permanent residency you and your sister would have received it too. 

It just was something that I was unsure of because my mom always claims up and down that we are legal because student visas don’t expire? I remember with my visa, I got a D/S but not an official expiration date. I don’t know. And, I know I stated that my dad doesn’t go to school which is true but he is enrolled in one of those for profit? English schools where they just mark everyone off. 

 

So so long story short, there’s pretty much no option but marriage for my sister?

Edited June 5, 2018 by Jen45566

[Teemo 252]

15 minutes ago, Jen45566 said:

It just was something that I was unsure of because my mom always claims up and down that we are legal because student visas don’t expire? I remember with my visa, I got a D/S but not an official expiration date. I don’t know. And, I know I stated that my dad doesn’t go to school which is true but he is enrolled in one of those for profit? English schools where they just mark everyone off. 

 

So so long story short, there’s pretty much no option but marriage for my sister?

D/S means duration of status which means the I-94 is valid as long as the person is doing the activity for which the visa was issued, which in your parents' case would be studying with a full courseload. He isn't, so he is out of status (what he has doesn't count and besides, customary length of time is 4 years plus OPT, not 2 decades). Of course it doesn't mean they can stay forever without being out of lawful status. "Duration of status" is easily Googlable btw. 

 

When you say "my sister is still an F-2 visa holder" - I think what you mean is she entered the country as an F-2 visa holder. As soon as the F-1 visa was no longer valid (when the student stopped taking a full courseload) her visa was no longer valid either and she started accruing unlawful presence. So no, she is not still an F-2 visa holder, she is here unlawfully. The primary way to cure unlawful status while not leaving the country is through a USC immediate family member such as spouse or child over 21. Therefore spouse is pretty much the only option if she does not have a child coming on 21. Btw how old is your sister? If still a minor you should talk to a lawyer about how unlawful presence actually works for minors in terms of a ban on re-entering the country because I am not sure. 

Edited June 5, 2018 by Teemo

[geowrian 22,337]

D/S doesn’t prevent them from being out of status. It does, right now, mean they don’t accrue unlawful presence resulting in a 10 year bar upon exit from the US (barring USCIS or an IJ formally making a determination that they are out of status).

 

That said, there is a change to this interpretation very recently released, making D/S start accumulating unlawful presence after they no longer qualify for their status + the grace period. This starts kicking in soon.

 

AOS is available for a sibling, but only if they are lawfully present in the US and their I-130’s PD is current. That will take 15-25 years right now.

 

Option 2 is to become a USC, petition the parents (overstay is ignored), then have the parent petition the children. ETA: ~7-10 years for that. However, the children need to leave the US and interview abroad. They shouldn’t have a bar upon exit if the above paragraph is followed (leaving before they accumulate unlawful presence).

[geowrian 22,337]

17 minutes ago, Teemo said:

still a minor you should talk to a lawyer about how unlawful presence actually works for minors in terms of a ban on re-entering the country because I am not sure. 

Unlawful presence kicks in starting at age 18, if somebody has no existing protection that prevents or tolls unlawful presence.

[Teemo 252]

5 minutes ago, geowrian said:

Unlawful presence kicks in starting at age 18, if somebody has no existing protection that prevents or tolls unlawful presence.

I thought so but there's some conflicting stuff out there. But essentially if she leaves before age 18 you're saying she has no unlawful presence that would count against a future visa?

[Umka36 781]

OP sister is 19.5 years old based on the first post.

Edited June 5, 2018 by Umka36

[azblk 338]

2 hours ago, Jen45566 said:

So, I am married to a USC and before I got married I was on a F-1 visa and completely detached from my family’s status. I am a green card holder and will naturalize as soon as I am able to . I am 21 years old. I don’t know if I have to be a certain age to sponsor someone.

 

My family on the other hand has been here since the 1990s on a F-1 visa and my sister is still an F-2 visa holder. She will be 21 in a year and a half. Now, my dad doesn’t go to school and works. My parents have pretty much screwed us to the point where we did not qualify for DACA and we have lived in the states our whole lives and cannot speak our home language. We simply cannot go back home. 

 

 

They are also unwilling to pay for our education because “all the American kids pay for their own” So, my little sister cannot pay for school (she unfortunately did not receive any scholarships) because she can’t work besides the odd cash jobs here and there and we don’t qualify for aid or loans. So, she won’t be able to enter the work visa lottery after college. We have also tried to enlist in the army but by the time we were both old enough, they have closed their MAVNI program. Anyways, I’m saying all this because I feel like just by ourselves we are at a dead end. My sister has been dating but understandably she has not found any one she wants to marry.  

 

Anyways, I know I still have a year before I could help my sister but is it possible? Can I file an AOS on her behalf? I am also worried because when I filed my paperwork even if I was out of status I did not have any  unlawful presence  but I read somewhere that USCIS is planning to change the law where F-1 students will start gaining unlawful presence starting August.  Is there anyway I could help her stay here? If I do file an AOS for her can she stay here in the states like I did even if she is out of status? Anyone, go through something similar?

Your sister needs to help her self. She is out of status now and basically has only one path to permanent residence, that is marriage to a USC. It is not helpful to cry over spilled milk, what your parents did right or wrong has passed and she is an adult now in the eyes of the law and whatever she does now is on her.

Yes starting in august even d/s i-94s will start to accrue unlawful presence unlike in the past. Unlawful presence means nothing until you leave the country.

[geowrian 22,337]

2 hours ago, Teemo said:

I thought so but there's some conflicting stuff out there. But essentially if she leaves before age 18 you're saying she has no unlawful presence that would count against a future visa?

There are other circumstances that prevent or toll unlawful presence while covered....the biggest ones being TPS and DACA. So if somebody turns 18 and has DACA (or whatever other authorized stay / deferred action) approved on day 1 of turning 18, then they won't have any unlawful presence accumulated for the purpose of obtaining a bar so long as they remain covered. Once they lose coverage, the accrual of unlawful presence starts/resumes.

 

If they leave before age 18 then they won't have any bar for an overstay. It doesn't not mean they did not overstay....so getting a non-immigrant visa may be a challenge still (likelihood to overstay again/work/try to find a way to AOS), but no bar upon exit for an overstay.

But the ages here are all over 18 right now anyway IIRC. The D/S should protect them from a bar due to unlawful presence at least until August (?) when the new rules kick in.

[Jen45566 0]

35 minutes ago, geowrian said:

There are other circumstances that prevent or toll unlawful presence while covered....the biggest ones being TPS and DACA. So if somebody turns 18 and has DACA (or whatever other authorized stay / deferred action) approved on day 1 of turning 18, then they won't have any unlawful presence accumulated for the purpose of obtaining a bar so long as they remain covered. Once they lose coverage, the accrual of unlawful presence starts/resumes.

 

If they leave before age 18 then they won't have any bar for an overstay. It doesn't not mean they did not overstay....so getting a non-immigrant visa may be a challenge still (likelihood to overstay again/work/try to find a way to AOS), but no bar upon exit for an overstay.

But the ages here are all over 18 right now anyway IIRC. The D/S should protect them from a bar due to unlawful presence at least until August (?) when the new rules kick in.

So if my sister leaves the states before August she will not be subjected to a ban?

Edited June 5, 2018 by Jen45566

[geowrian 22,337]

5 minutes ago, Jen45566 said:

So if my sister leaves the states before August she will not be subjected to a ban?

If she was admitted as D/S and never had USCIS or an IJ determine that she is in the US unlawfully, then that's correct.

[randomstairs 303]

" I am also worried because when I filed my paperwork even if I was out of status I did not have any  unlawful presence  but I read somewhere that USCIS is planning to change the law where F-1 students will start gaining unlawful presence starting August."

 

This only applies to those who lost F1 status on or after August 9, 2018, so you should be fine (if everything else was in good order). The directive is here: https://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft Memorandum for Comment/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO_v2.pdf