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

[replaysports 41]

22 hours ago, Juaco said:

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?

You can not petition for a 26 year old child... must be under 21 and unmarried, since you are just a GC holder.

 

Regardless your child would have to go back to her country and not overstay her visitor visa else she would have lied to an immigration officer when she arrived here on her visa and then during future interview they would be denied based on lying.

 

[SusieQQQ 11,586]

5 minutes ago, replaysports said:

You can not petition for a 26 year old child... must be under 21 and unmarried, since you are just a GC holder.

 

Regardless your child would have to go back to her country and not overstay her visitor visa else she would have lied to an immigration officer when she arrived here on her visa and then during future interview they would be denied based on lying.

 

Wrong, category F2B is the category for sons and daughters over 21 of LPRs. LPRs cannot petition for married sons and daughters, but they can certainly petition for over 21s.

Also wrong that any future visa would be denied “based on lying” for a past overstay, as many many visa recipients in the past can tell you, whether they got a waiver for overstay or waited out a ban. Don’t understand why there is such apparent leniency on the waivers, but there they are.
 

 

Edited February 19, 2021 by SusieQQQ

[Demise 1,281]

On 2/18/2021 at 12:43 PM, Juaco said:

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?

Well I won't comment on the overstay just to stay clear of the TOS. I will just say that leaving now would trigger a 10 year bar and that's something nobody should recommend in clear conscience.

 

In any case, here's what you can do:

File I-130 for her. You can do this now, CLPR have the same rights as regular LPRs when it comes to petitioning for relatives. (8 CFR 216.1, dropping the citation here just in case someone wants to argue and people here like to argue, we're good at it)

That will place her into F2B category that's backlogged about 6 years now.

Once the I-130 is approved and the F2B category becomes current she'll file pay for the DS-260 and file I-601A using you as a qualifying relative. She will have to argue that you will suffer "Extreme hardship" from her absence, the term is scary, and I recommend getting a lawyer who does waivers, but it's far from insurmountable for most.

Once the I-601A is approved she'd finish and file the DS-260, leave US, go attend a consular interview, get her immigrant visa, and come back as a full fledged green card holder.

 

Few things to keep in mind: There's no category for married children of LPRs, meaning that she would either need to stay unmarried until you naturalize or she gets her green card, or if she marries a USC that will kill this petition, but allow her to AOS as a spouse of a US Citizen, so if that's an option that becomes available, it might be worth taking.

 

Edited February 22, 2021 by Demise

[SusieQQQ 11,586]

28 minutes ago, Demise said:

I will just say that leaving now would trigger a 10 year bar and that's something nobody should recommend in clear conscience.

Yet somehow, recommending (the only logical inference from your solution) that she stay illegally for another 6-8 years leaves you with a clear conscience? 🙄 so your clear conscience leads you to tell OP that she should rather stay illegally for most for the time waiting for the visa rather than legally in her home country? Right .... 

[Juaco 5]

I recently got my green card through my US citizen husband. My adult daughter lives here in the USA and entered the USA with a tourist visa. Her visa is now expired. As a green card holder can I request her so she can get her green card? What forms do I need to submit? Can she remain in the USA while the USCIS is processing the application? Some say she needs to go back to Colombia and the US embassy there will determine when could she return.

[SteveInBostonI130 3,434]

22 minutes ago, Juaco said:

I recently got my green card through my US citizen husband. My adult daughter lives here in the USA and entered the USA with a tourist visa. Her visa is now expired. As a green card holder can I request her so she can get her green card? What forms do I need to submit? Can she remain in the USA while the USCIS is processing the application? Some say she needs to go back to Colombia and the US embassy there will determine when could she return.

No, she cannot stay and adjust status.

 

If your daughter is unmarried, you can petition for her in the F2B class.  That will take about 6 years for a visa to be available for her, and then about a year more to complete the process.  She will interview in Colombia.

 

If she marries or is married, then you will need to be a citizen first and then wait about 15 years for the visa availability (after submitting her petition).

 

Also, she will need to return before 6 months of visa overstay in order to not get a ban.

 

 

Edited December 16, 2021 by SteveInBostonI130

[Crazy Cat 41,845]

51 minutes ago, Juaco said:

I recently got my green card through my US citizen husband. My adult daughter lives here in the USA and entered the USA with a tourist visa. Her visa is now expired. As a green card holder can I request her so she can get her green card? What forms do I need to submit? Can she remain in the USA while the USCIS is processing the application? Some say she needs to go back to Colombia and the US embassy there will determine when could she return.

Is this the daughter?  If so, you received the correct info then.   

 

 

Edited December 16, 2021 by Crazy Cat

[Crazy Cat 41,845]

She cannot ever adjust status through you since she has overstayed..... even after you become a US citizen.  She needs the appropriate visa to become a legal resident in the US.  To make things worse, she will incur a ban when she leaves the US (if she has overstayed as long as it appears).  In other words, this is a mess.  

Edited December 16, 2021 by Crazy Cat

[Juaco 5]

Thanks for your quick reply. Do you have the USCIS quote or can you direct me to the USCIS document that specifically has this information?

[TBoneTX 45,273]

Identically-themed threads merged and moved to proper forum.  Please post just once on a topic.

 

VJ Moderation

Edited December 16, 2021 by TBoneTX

[Juaco 5]

According to the USCIS we need to file the I-385 with I-130 concurrently. Please refer me to the USCIS page with your stated information.

[SteveInBostonI130 3,434]

22 minutes ago, Juaco said:

According to the USCIS we need to file the I-385 with I-130 concurrently. Please refer me to the USCIS page with your stated information.

 

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2

 

Quote

D. Immigrant Visa Immediately Available at Time of Filing and at Time of Approval

In general, an immigrant visa must be available before a noncitizen can apply for adjustment of status.^[99] An immigrant visa is always available to applicants seeking adjustment as immediate relatives. Visas are numerically limited for most other immigrant categories eligible to adjust; applicants in these numerically limited categories may need to wait until a visa is available before they can file an adjustment application. Furthermore, an immigrant visa must be available for issuance on the date USCIS approves any adjustment application.^[100]

 

As category F2B, your daughter is not an immediate family member (parents, spouses and children - that is, under 21 - of USC's are immediate relatives).  She is in family preference category, and therefore subject to numerical limits and need to wait for a visa to be available.

 

 

 

She is barred from adjusting status because of her visa overstay (Failed to Continuously Maintain Lawful Status Since Entry into United States).   She is not exempt from this bar because she is not an immediate relative (as explained above).   To explain further, immediate relatives are "IR" category - IR1 (spouse), IR2 (child), IR5 (parent).  Your daughter is family preference "F2B", unmarried son or daughter of an LPR.

 

Edited December 16, 2021 by SteveInBostonI130

[Crazy Cat 41,845]

1 hour ago, Juaco said:

According to the USCIS we need to file the I-385 with I-130 concurrently. Please refer me to the USCIS page with your stated information.

Any I-485 she files to adjust status through you will be denied.  @SteveInBostonI130 is correct.

[Juaco 5]

Thanks for all your help and quick response. Just to clarify her USA visa is not expired. She only overstayed her tourist entry (over 6 month). 

[aaron2020 11,651]

52 minutes ago, Juaco said:

Thanks for all your help and quick response. Just to clarify her USA visa is not expired. She only overstayed her tourist entry (over 6 month). 

Her tourist visa was automatically voided when she overstayed.  Doesn't matter that it is not expired.  It's no longer good.