VERY tough situation - filing for siblings

[user555 196]

1 hour ago, APGG94 said:

It’s been 7 years

Once the tourist visas expired, all three children were out of status. Their visas became void. They have been in the US since then and have been breaking US immigration law. All 3 risk being arrested and taken through removal proceedings. You cannot adjust status from within the US if you have broken immigration law. They allow some exceptions if you're the immediate family of a US citizen (spouse, parents, unmarried children under 18). I don't see an easy way out for them. In the hopes of expanding their future, your parents and your grandmother have limited their future. I know you're trying to make things right, but the US government has very strict laws on this. 

[APGG94 35]

4 minutes ago, user555 said:

Once the tourist visas expired, all three children were out of status. Their visas became void. They have been in the US since then and have been breaking US immigration law. All 3 risk being arrested and taken through removal proceedings. You cannot adjust status from within the US if you have broken immigration law. They allow some exceptions if you're the immediate family of a US citizen (spouse, parents, unmarried children under 18). I don't see an easy way out for them. In the hopes of expanding their future, your parents and your grandmother have limited their future. I know you're trying to make things right, but the US government has very strict laws on this. 

I understand. I’m trying my best to provide them with options though I know there’s few to none right now. I’m worried sick about it. Thanks for your response. 

18 minutes ago, designguy said:

no he wouldnt sorry

Thank you. 

[Boiler 45,467]

Time for their parents to step up to the mark and take responsibility.

[belinda63 3,038]

The two who are over 18 will have bans dependent on how long it has been since they turned 18. Less than 180 days no ban, 181-365 days 3 year ban, over 365 days, 10 year ban. The child under 18 will incur no ban if he leaves before he turns 18 plus 180 days.

Siblings have to wait for a visa number to become available. The current wait is about 15 years for most countries. When their visa priority date becomes current then they will do consular processing in another country where they legally reside. They cannot apply to adjust status until their priority date becomes current and only if they are in the US in a lawful status. 

The best thing to do is to file the I-130s for them and have them leave the US. As you have stated they cannot work or go to school here so they cannot have a productive life. When their priority date becomes current the bans will have expired and they can interview for their visas.

[portorusa 431]

I may be mistaken here but as the siblings were brought in the US as minors, aren’t they eligible for DACA?

[Orangesapples 1,954]

11 minutes ago, portorusa said:

I may be mistaken here but as the siblings were brought in the US as minors, aren’t they eligible for DACA?

That's what I thought too. I guess they can't apply for DACA now but if it's reinstated under a hopefully new presidency, it could be an option. 

[geowrian 22,337]

30 minutes ago, portorusa said:

I may be mistaken here but as the siblings were brought in the US as minors, aren’t they eligible for DACA?

It appears they entered the US too late for that (even when new DACA applications were still being accepted):

 

OP: "It’s been 7 years "

DACA Requirements:

• Have lived continuously in the U.S. since June 15, 2007.
• Have been present in the U.S. on June 15, 2012, and on every day since August 15, 2012.

Edited August 22, 2020 by geowrian

[Demise 1,281]

@APGG94

 

Here's the ideal solution for you. F4 is backlogged 14 years so lets explore an alternative.

 

Parents are Immediate Relatives, petition for a mutual parent. Now have the now LPR mutual parent petition for them in either F2A (if under 21) or F2B (if over 21). F2A is current right now and F2B is backlogged about 5 years.

 

In cases of F2A, CSPA will probably come into play, it's a law designed to prevent ageouts. The time the I-130 will be pending won't count towards their age, and within 1 year of the approval or priority becoming current (whichever is later) they have to "seek to acquire permanent residency", what this means is basically "file I-485, DS-260, or I-824", doing so will freeze their age permanently regardless of when they actually get their immigrant visa. You can exploit this by having them file DS-260 even if they're not yet eligible to immigrate due to re-entry bar issues (and then file I-601A and tell NVC to sit on it for now because I-601A is pending).

 

If they're over 18.5 at the time then they'll have to go through the I-601A waiver process, for that one needs an LPR/USC Spouse or Parent(s), once the I-601A is approved they can undergo consular processing and get their immigrant visas. If they're under they can just go and do consular processing.

 

 

Back when I worked in the field (was a paralegal) we've done something similar. Client and wife were out of status, client was petitioned by work in EB3, his sister's a USC, we had the sister petition for their parents and later we used the parents to get him an I-601A, and would later use the client to get his wife an I-601A (I quit midway through this case so I didn't see it completion).

Edited August 22, 2020 by Demise

[Boiler 45,467]

4 hours ago, Orangesapples said:

That's what I thought too. I guess they can't apply for DACA now but if it's reinstated under a hopefully new presidency, it could be an option. 

Even better Amnesty.

[Lucky2Lucky 2,526]

7 hours ago, APGG94 said:

I understand. I’m trying my best to provide them with options though I know there’s few to none right now. I’m worried sick about it. Thanks for your response. 

Thank you. 

I want to point out to you if they are receiving any type of government benefits this will hurt them in the future if they decide to legally immigrate. 

[SusnOwen 159]

I would suggest looking into a special immigrant juvenile petition, and do it now while they are all under the age of 21.  I would also advise using a lawyer - this is a complex process, but it should be available to them.

 

Editing to add - I was involved in one of these cases back when I was a paralegal - We took a court appointed advocate case for a girl in foster care.  When we started looking into it, we found that she had been brought to the US (basically sold) and ran away from the family.  She had been here for years, and technically didn't have any legal status.  Through the attorneys at our firm, they managed to get her a GC through the special immigrant juvenile petition, which in very simple terms is for a child that has unlawful presence in the USA through no fault of their own.

Edited August 22, 2020 by SusnOwen

[Boiler 45,467]

1 hour ago, Demise said:

@APGG94

 

Here's the ideal solution for you. F4 is backlogged 14 years so lets explore an alternative.

 

Parents are Immediate Relatives, petition for a mutual parent. Now have the now LPR mutual parent petition for them in either F2A (if under 21) or F2B (if over 21). F2A is current right now and F2B is backlogged about 5 years.

 

In cases of F2A, CSPA will probably come into play, it's a law designed to prevent ageouts. The time the I-130 will be pending won't count towards their age, and within 1 year of the approval or priority becoming current (whichever is later) they have to "seek to acquire permanent residency", what this means is basically "file I-485, DS-260, or I-824", doing so will freeze their age permanently regardless of when they actually get their immigrant visa. You can exploit this by having them file DS-260 even if they're not yet eligible to immigrate due to re-entry bar issues (and then file I-601A and tell NVC to sit on it for now because I-601A is pending).

 

If they're over 18.5 at the time then they'll have to go through the I-601A waiver process, for that one needs an LPR/USC Spouse or Parent(s), once the I-601A is approved they can undergo consular processing and get their immigrant visas. If they're under they can just go and do consular processing.

 

 

Back when I worked in the field (was a paralegal) we've done something similar. Client and wife were out of status, client was petitioned by work in EB3, his sister's a USC, we had the sister petition for their parents and later we used the parents to get him an I-601A, and would later use the client to get his wife an I-601A (I quit midway through this case so I didn't see it completion).

OP is a LPR

 

Do not see how CSPA could apply.

[Demise 1,281]

22 minutes ago, Boiler said:

OP is a LPR

 

Do not see how CSPA could apply.

I know OP is an LPR but will be naturalizing next year. Not like they can do anything right now anyways.

 

CSPA can apply in the situation I outlined (naturalize, petition parent(s), parent petitions sibling as child). Two are over 18 (unknown if over 21, if they're barely over 18 it's possible everything could be timed that I-130 gets filed right before they turn 21 where CSPA will definitely come into play), the last one's 15, CSPA probably wouldn't come into play there unless someone drops the ball but it's nonetheless something to be mindful of.

Edited August 22, 2020 by Demise

[Demise 1,281]

32 minutes ago, SusnOwen said:

I would suggest looking into a special immigrant juvenile petition, and do it now while they are all under the age of 21.  I would also advise using a lawyer - this is a complex process, but it should be available to them.

 

Editing to add - I was involved in one of these cases back when I was a paralegal - We took a court appointed advocate case for a girl in foster care.  When we started looking into it, we found that she had been brought to the US (basically sold) and ran away from the family.  She had been here for years, and technically didn't have any legal status.  Through the attorneys at our firm, they managed to get her a GC through the special immigrant juvenile petition, which in very simple terms is for a child that has unlawful presence in the USA through no fault of their own.

I personally never worked with SIJ cases and didn't even consider it, but this is could be a valid path forward.

[APGG94 35]

1 hour ago, Demise said:

@APGG94

 

Here's the ideal solution for you. F4 is backlogged 14 years so lets explore an alternative.

 

Parents are Immediate Relatives, petition for a mutual parent. Now have the now LPR mutual parent petition for them in either F2A (if under 21) or F2B (if over 21). F2A is current right now and F2B is backlogged about 5 years.

 

In cases of F2A, CSPA will probably come into play, it's a law designed to prevent ageouts. The time the I-130 will be pending won't count towards their age, and within 1 year of the approval or priority becoming current (whichever is later) they have to "seek to acquire permanent residency", what this means is basically "file I-485, DS-260, or I-824", doing so will freeze their age permanently regardless of when they actually get their immigrant visa. You can exploit this by having them file DS-260 even if they're not yet eligible to immigrate due to re-entry bar issues (and then file I-601A and tell NVC to sit on it for now because I-601A is pending).

 

If they're over 18.5 at the time then they'll have to go through the I-601A waiver process, for that one needs an LPR/USC Spouse or Parent(s), once the I-601A is approved they can undergo consular processing and get their immigrant visas. If they're under they can just go and do consular processing.

 

 

Back when I worked in the field (was a paralegal) we've done something similar. Client and wife were out of status, client was petitioned by work in EB3, his sister's a USC, we had the sister petition for their parents and later we used the parents to get him an I-601A, and would later use the client to get his wife an I-601A (I quit midway through this case so I didn't see it completion).

Thank you so much for suggesting this option! I’ll bookmark and look into everything you shared. I can petition for my mother next year if that will be the fastest way to help them. 
 

My other two siblings are now over 21. Would I only be able to help my youngest sibling this way?