F2B Visa

[Juaco 5]

My wife is about to get her green card and has a daughter in the US that overstayed her tourist visa by several years. I understand that she can submit a petition (I-130) her and that she will also need for I-601. Can soneone explain this I-601 form and how does it work? Will her daughter have to return to her country of origen to get approved or deny?

 

Edited August 26, 2020 by Juaco

[igoyougoduke 1,662]

12 minutes ago, Juaco said:

My wife is about to get her green card and has a daughter in the US that overstayed her tourist visa by several years. I understand that she can submit a petition (I-130) her and that she will also need for I-601. Can soneone explain this I-601 form and how does it work? Will her daughter have to return to her country of origen to get approved or deny?

 

how old is the daughter  and did the daughter enter legally ?

[Lucky2Lucky 2,526]

I believe Her daughter can not adjust status through her as a LPR. Her daughter should go back to her home country, which she has now incurred a 10 year ban if she overstayed years; and mom can petition for her once she lives out her ban. 
 

I believe to file a i601 She needs to be out of the country and a lawyer is highly recommended. Also daughter age and marital status plays a role.

Edited August 26, 2020 by Luckycuds

[HRQX 4,145]

1 hour ago, Luckycuds said:

which she has now incurred a 10 year ban if she overstayed years;

Thus the daughter should file I-601A provisional waiver (after OP's wife enters the US with the Immigrant Visa) for that ban. https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers Shouldn't leave the US until I-601A and I-130 are approved and F2B priority date is current in order to minimize the time spent outside the US. Some lucky cases just spend 2 to 3 weeks outside the US. Other cases end-up spending months outside the US before returning with Immigrant Visa.

[Juaco 5]

Daughter is 26 years old and entered legally with a tourist visa but overstayed.

[Juaco 5]

Even if her daughter overstayed her visa she will still need to return to her country? I'm getting mix responses where they say she will need to return if she entered illegally without a visa.  not if she overstay her visa. 

[HRQX 4,145]

2 hours ago, Juaco said:

Even if her daughter overstayed her visa she will still need to return to her country?

Yes, because the overstay results in many INA 245(c)(2) adjustment bars:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-4

"Any adjustment applicant is ineligible to adjust status under INA 245(a) if, other than through no fault of his or her own or for technical reasons, ^[1] he or she has ever:

• Failed to continuously maintain a lawful status since entry into the United States"

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3

"An alien is barred from adjustment of status if the alien is in an unlawful immigration status on the date of filing the adjustment application."

 

That is why you need to look into provisional waiver process so that she doesn't have to spend too much time outside of the US: https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers "Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent."

Edited August 28, 2020 by HRQX

[aleful 1,905]

hi

 

yes, she will have her interview in her country because she can't adjust status in the us.

 

she will be able to file the waiver i601A before leaving, she should have her waiver approved. she only has to be out for 2 to 3 weeks once she has an interview. at least those are the laws currently. her mom can't even file for her so there are years of waiting and laws can change

 

she overstayed her visa, incurring in a 10 year ban for illegal presence of more than one year in the country. with the i601A, comes the hardship letter with evidence that her mom will have to prepare. but for that is a very long time. her i130 has to be approved first

[Juaco 5]

My wife spoke with friends at USCIS and they said if she is require to return to her country she can hire a lawyer so she can stay in the US. This is confusing. After filing I130 that she wait for USCIS to request for I601? How long is the wait? 

[HRQX 4,145]

5 hours ago, Juaco said:

After filing I130 that she wait for USCIS to request for I601?

No. After your wife files I-130 you wait for I-130 to be approved. After I-130 is approved, your stepdaughter files I-601A: https://www.nolo.com/legal-encyclopedia/how-apply-provisional-waiver-three-ten-year-time-bar.html "Only after your I-130 has been approved can you file your Provisional Waiver Application (on USCIS Form I-601A, available as a free download from the agency's website). You cannot submit the visa petition at the same time as (“concurrently” with) the waiver application."

 

Reminder about filling out I-130 properly: "If you haven't already submitted that form, be sure to indicate in Question 22 to Form I-130 that the immigrant will apply for an immigrant visa abroad at a U.S.consulate abroad rather than adjusting status in the U.S.). (If the immigrant were allowed to adjust status in theU.S., you wouldn't have to bother with the provisional waiver in the first place.) By filling Question 22 out this way, USCIS will, upon approving the I-130, transfer the file to the National Visa Center (NVC) for further action and transfer to the consulate. If you say on the I-130 that the immigrant will apply for adjustment of status in the U.S., you will have to take extra steps to have the file transferred to the NVC. This includes filing a Form I-824 and paying a filing fee, then waiting many months for action on your request."

[Demise 1,304]

On 8/26/2020 at 5:38 PM, Juaco said:

My wife is about to get her green card and has a daughter in the US that overstayed her tourist visa by several years. I understand that she can submit a petition (I-130) her and that she will also need for I-601. Can soneone explain this I-601 form and how does it work? Will her daughter have to return to her country of origen to get approved or deny?

 

Pretty much only Immediate Relatives of US Citizens can adjust after an overstay (as well as some other groups like VAWA self-petitioners, SIJ beneficiaries, S/T/U visa beneficiaries, and a few group too few in numbers to bother listing).

 

Everyone else cannot and they'd have to leave to undergo consular processing (that is leave and go get an immigrant visa abroad). There is a problem with that however and that problem is INA 212(a)(9)(B), essentially if you overstay for 180 days and leave you get a re-entry bar (3 years if 180 days to 1 year, 10 years if 1 year or more). This is where the I-601A waiver comes into play.

 

In order to get an I-601A, you need a USC/LPR Spouse or Parent who'd suffer extreme hardship if you were removed and barred from re-entry. "Extreme hardship" isn't really an insurmountable standard tbh. If it's approved then the bar is waived and the daughter can leave and get her immigrant visa and return to US as an LPR.

 

So the process would overall look like this:

 

1. Mother files I-130

2. I-130 is eventually approved

3. Priority date becomes current after a few years

4. Daughter pays the DS-260 fee

5. Daughter files I-601A alleging extreme hardship to the mother

6. I-601A is approved

7. Daughter completes the DS-260 application

8. Daughter gets a date for the interview abroad

9. Daughter leaves US

10. Daughter attends the interview and gets the immigrant visa

11. Daughter returns to US as a permanent resident

 

 

Moreover, I-601A can be used for basically all green card petitions (which due to a quirk of the law includes DV lottery). So if she could get an employer to petition for her or win the DV lottery she could shave off quite a bit of wait time.

Edited September 1, 2020 by Demise

[HRQX 4,145]

1 hour ago, Demise said:

or win the DV lottery she could shave off quite a bit of wait time.

Don't know her nationality, but based on OP's profile Colombia is a decent guess. If that's the case, reminder that nationals of Colombia don't usually qualify for DV lottery: https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2021-Instructions-Translations/DV-2021-%20Instructions-English.pdf