CR6 petition for adult daughter in US with expired B2 [merged threads]

[Juaco 5]

I have a conditional green card (CR6). My adult daughter (26) is also here in the US with an expired B2 visa (tourist). Her expired tourist is now 3 years old. I want to petition for her so she can get LPR.

 

Can I petition for her with a CR6 green card or do I have to wait for a permanent?

 

Do I use form I-130?

 

Can she stay in the US while the petition is in process?

 

How long does it take for her to obtain LPR?

Edited December 16, 2021 by TBoneTX

[milimelo 4,477]

You can petition her but she can not adjust status as overstay is NOT forgiven for family of permanent resident. 

[Juaco 5]

Are you saying I can petition for my daughter but it is useless because it is not forgiving? 

Then why would you petition if if does not do her any good? 

 

 

Edited February 18, 2021 by Juaco

[SusieQQQ 11,586]

She can go back to her home country to await a visa if you petition her. She will have to wait out her ban period after she leaves so may as well leave now to be able to use a visa when available. Waiver for the ban may be possible. That’s the only way for her to get legal. No path through you via adjustment of status. 
 

 

Edited February 18, 2021 by SusieQQQ

[Crazy Cat 41,845]

17 minutes ago, Juaco said:

Are you saying I can petition for my daughter but it is useless because it is not forgiving? 

Then why would you petition if if does not do her any good? 

 

 

You can submit an I-130 for her to start the immigration process, but she cannot adjust status inside the US through you as she has overstayed her visit. She is not an immediate relative.   How long has she overstayed her authorized visit?  Her B2 visa does not allow her live in the US.  She can return to her country and wait like millions of others do legally.  At the appropriate time, she can submit a wavier for the ban (if applicable) she will incur once she leaves the US.

The fact is that she cannot stay in the US and adjust status through you.

 

Edited February 18, 2021 by Lucky Cat

[SusieQQQ 11,586]

9 minutes ago, milimelo said:

You can petition her but she can not adjust status as overstay is NOT forgiven for family of permanent resident. 

Even if OP was citizen overstay would not be forgiven because child is over 21 / not IR category. 

[Crazy Cat 41,845]

19 minutes ago, Juaco said:

Then why would you petition if if does not do her any good?

Petitioning via an I-130 only starts the process.  Since she cannot adjust status through you, she will have to apply for the appropriate visa outside the US....at the appropriate time.

Edited February 18, 2021 by Lucky Cat

[Crazy Cat 41,845]

@Juaco, are you asking this question for yourself or your wife?

[Juaco 5]

Just now, Lucky Cat said:

@Juaco, are you asking this question for yourself or your wife?

My wife. 

[aaron2020 11,651]

People file the I-130 even though the beneficiary can not adjust to start the immigration process.

 

Whether the petitioner parent is a USC or LPR does not matter.  An adult child who overstays can not adjust status through either a USC or LPR parent.  Overstay is not forgiven for an adult child in either cases.  

Your adult child will either need to leave the US and serve the 10 years bar for overstaying more than 3 years in the US before qualifying for an immigrant visa or if you can obtain an I-601a waiver when the PD becomes current in 7-8 years and be able to show an extreme hardship to the petitioning parent.  

Realistically, there is no path to be legal through either a USC or LPR parent without leaving and serving the 10 years ban.  

[Boiler 45,486]

Who Is Eligible to Use I-601A Provisional Waiver Application Process

To make use of the I-601A waiver possibility, you must meet all of the following criteria:

You must be eligible for an immigrant visa to the U.S.

You are physically present in the United States at the time of submitting your Form I-601A.

You have reached the age of 17.

You are otherwise admissible to the United States. (Your provisional waiver will be denied if you need to additionally ask for a waiver of any other grounds of inadmissibility, perhaps based on crime, fraud, and so forth; or even if USCIS has reason to believe that you are inadmissible on some other ground.)

You can supply evidence showing that, if not granted the waiver and green card, your qualifying U.S. relative(s); in this case, ONLY including your U.S. citizen spouse or parent; will suffer extreme hardship as a result.

 

A LPR parent can file a I 601.

 

Sounds tricky to prove extreme hardship but has been done.

[Juaco 5]

Thanks everyone for your responses

[HRQX 4,145]

16 hours ago, Juaco said:

Are you saying I can petition for my daughter but it is useless because it is not forgiving?

Not completely useless. After the I-130 is approved and PD is current she can pay the IV fees. After paying the IV fees she can file Form I-601A: https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers "Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee" An example of F2B case that did I-601A path:

More info from the USCIS link above: "The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees); who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview." That limits the time outside 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.

[SusieQQQ 11,586]

The problem with going the i601a route compared to going home to wait out the ban is knowingly intending to spend a number more years illegal in the US. Well clearly it’s not a scary prospect for her given the time already spent here unlawfully but be aware she remains deportable throughout all that time and if she is deported, getting an immigrant visa may be less easy. 

[Boiler 45,486]

the VJ ToS is much less forgiving btw.