I am slightly confused by the process..

[kdizzle 0]

Hey there,

I am asking this question on behalf of family members that need help with the process.

They are Lawful Permanent Residents looking to start a process for their over 21y/o unmarried child who is currently on student visa in the US.

Is such process applicable?

Can they start a GC process while child continues studies in US?

What if someone decides to discontinue their studies while on immigration process in US?

Just covering all bases as they are just trying to do the right thing. Thank you so much for your help

[JFH 12,190]

They can start the process whenever they want. Whether the person can stay in the USA for the entire process is another matter. The son/daughter can only stay here as long as they are in authorized stay on the student visa. Once that stay is over, they must leave. They cannot overstay.

 

Depending on where the person is from, it could be between 5 and 12 years to wait. If they can lawfully stay here that long with their student visa (unlikely) then that’s fine. 
 

The student visa is for studying. If they discontinue their studies, they must leave. 

[SusieQQQ 11,586]

They can start the process by filing an i130, petition for alien relative. However they cannot file an i485 to  adjust status until the priority date is current for the category of relative - in this case (F2B)  likely to be at least 5 years after filing. This means that the son/daughter  must have another basis to be legally present in the country until he or she (let’s say he for ease) is able to file to adjust status, else he will need to return to his home country to await visa processing.

 

Note also that for a family based petition such as F2B, if adjustment of status is to take place then it can only happen if the beneficiary has never been out of status while in the US. So in the specific question you ask about what happens if he stops studying - well he violates his student visa, and is then ineligible to adjust. His only option at that point is to return to his home country. If he accumulates more than 180 days of unlawful presence after violating the rules of his student visa, he also becomes subject to a ban on entry in the US once he leaves, and that may affect when he is able to return on his eventual visa.

 

Also note that the parents naturalizing during this process does not change any of the above assessment, because of his age/visa category. The only benefit of them naturalizing is that if he decides to get married in the interim, the petition is not voided.

 

 

Edited June 12, 2020 by SusieQQQ

[kdizzle 0]

1 minute ago, SusieQQQ said:

They can start the process by filing an i130, petition for alien relative. However they cannot file an i485 to  adjust status until the priority date is current for the category of relative - in this case (F2B)  likely to be at least 5 years after filing. This means that the son/daughter  must have another basis to be legally present in the country until he or she (let’s say he for ease) is able to file for adjust status, else he will need to return to his home country to await visa processing.

 

Note also that for a family based petition such as F2B, if adjustment of status is to take place then it can only happen if the beneficiary has never been out of status while in the US. So in the specific question you ask about what happens if he stops studying - well he violates his student visa, and is then ineligible to adjust. His only option at that point is to return to his home country. If he accumulates more than 180 days of unlawful presence after violating the rules of his student visa, he also becomes subject to a ban on entry in the US once he leaves, and that may affect when he is able to return on his eventual visa.

 

Also note that the parents naturalizing during this process does not change any of the above assessment, because of his age/visa category. The only benefit of them naturalizing is that if he decides to get married in the interim, the petition is not voided.

 

 

Thank you for making it to easy to understand! I very much appreciate it. You hear 1000 different things that people will tell you, from "start the process while on tourist visa" to "start the process while on student visa" to "no they can't stay here" to "yes they can" lol, so they were afraid to mess something up and hurt their chances of doing the visa process rightfully. Thank you so much!!

[SusieQQQ 11,586]

21 minutes ago, kdizzle said:

Thank you for making it to easy to understand! I very much appreciate it. You hear 1000 different things that people will tell you, from "start the process while on tourist visa" to "start the process while on student visa" to "no they can't stay here" to "yes they can" lol, so they were afraid to mess something up and hurt their chances of doing the visa process rightfully. Thank you so much!!

The answers to those questions are not one size fits all, and depend on the immigration category. Immediate relatives of US citizens (spouse, parent, under 21 child) can stay/immediately file i485 because visas are immediately available, unlike your situation where you have to wait for a priority date to be current for a visa to be available. Those categories are also exempt from the bars to adjustment (like going out of status) which your case isn’t. 
 

 

Edited June 12, 2020 by SusieQQQ

[igoyougoduke 1,656]

On 6/12/2020 at 6:38 AM, kdizzle said:

Thank you for making it to easy to understand! I very much appreciate it. You hear 1000 different things that people will tell you, from "start the process while on tourist visa" to "start the process while on student visa" to "no they can't stay here" to "yes they can" lol, so they were afraid to mess something up and hurt their chances of doing the visa process rightfully. Thank you so much!!

the only important thing for the kid is to maintain their own legal visa status until they file their Adjustment of Status application which for F2b is currently at 2015 priority date. So like the kid wont be able to adjust their status until 2025 at current rate.  In that case the kid needs to be on some legal visa like Student, Work visa etc until AOS is filed