Can a Permanent Resident Adjust Status for a child who’s already in the US on ESTA?

[Moda25 15]

So my friend, who’s a green card holder came to the US with her daughter on ESTA from Germany. She has stayed in the US for almost two years now. My friend initially was advised by a lawyer to wait until she becomes a citizen before filing for her. However, yesterday she told me someone advised her to start the process now because it’s her daughter, she’s allowed to adjust her status a permanent resident. Any advice would be greatly appreciated.

[Crazy Cat 40,158]

***Moved to Adjustment of Status from Work, Student, and Tourist Visas***

[Crazy Cat 40,158]

30 minutes ago, Moda25 said:

So my friend, who’s a green card holder came to the US with her daughter on ESTA from Germany. She has stayed in the US for almost two years now. My friend initially was advised by a lawyer to wait until she becomes a citizen before filing for her. However, yesterday she told me someone advised her to start the process now because it’s her daughter, she’s allowed to adjust her status a permanent resident. Any advice would be greatly appreciated.

What was the basis for the Mother to adjust status?  How old is the child? Is Mother currently married to a US citizen?  Has anyone filed an I-130 for the child? 

 

To answer your question in the thread title at face value, the answer is:  A family member cannot adjust status through a Green Card holder, until a visa number is available via the visa bulletin.  Being inside the US has no relevance. 

Edited June 26 by Crazy Cat

[nastra30 2,103]

Op, Crazy Cat question is important. Without USC spouse daughter cannot adjust. Adjustment is not allowed through a GC holder if beneficiary enters with ESTA.

[Crazy Cat 40,158]

19 minutes ago, Crazy Cat said:

However, yesterday she told me someone advised her to start the process now because it’s her daughter,

Based on what you posted, the I-485 will be denied.  However, there is a possibility the child could adjust status if she is an immediate relative of a US citizen parent.

Edited June 26 by Crazy Cat

[Crazy Cat 40,158]

6 minutes ago, nastra30 said:

Adjustment is not allowed through a GC holder if beneficiary enters with ESTA.

Excellent point!!!!!  Even a current visa number would not allow adjustment of status after entry via VWP (unless Daughter is an immediate relative of a US citizen). 

Edited June 26 by Crazy Cat

[Moda25 15]

@Crazy Cat The father was a green card holder when he petitioned for the mother. While the mother was waiting overseas, she had her daughter so she received her visa and joined the husband while the husband petitioned for the child. Somewhere along the line, they moved to Germany while the petition was in progress at the NVC and it was eventually cancelled. Now, the mother and child have moved back to the US after 2 years of being away. So she wants to begin the process again and this time with the mother as the petitioner. The child is 9 years old.

Edited June 26 by Moda25

[nastra30 2,103]

17 minutes ago, Moda25 said:

@Crazy Cat The father was a green card holder when he petitioned for the mother. While the mother was waiting overseas, she had her daughter so she received her visa and joined the husband while the husband petitioned for the child. Somewhere along the line, they moved to Germany while the petition was in progress at the NVC and it was eventually cancelled. Now, the mother and child have moved back to the US after 2 years of being away. So she wants to begin the process again and this time with the mother as the petitioner. The child is 9 years old.

Ahh, The child could also have received her visa the first time at the same time as the mom as a derivative beneficiary.

Either ways child right now is not eligible to adjust because mom is LPR and child entered with VWP. Follow lawyer's advice.

 

 

 

Edited June 26 by nastra30

[Crazy Cat 40,158]

27 minutes ago, Moda25 said:

@Crazy Cat The father was a green card holder when he petitioned for the mother. While the mother was waiting overseas, she had her daughter so she received her visa and joined the husband while the husband petitioned for the child. Somewhere along the line, they moved to Germany while the petition was in progress at the NVC and it was eventually cancelled. Now, the mother and child have moved back to the US after 2 years of being away. So she wants to begin the process again and this time with the mother as the petitioner. The child is 9 years old.

So, the Father is not a US citizen, and he is not inside the US, correct?

[Moda25 15]

@Crazy Cat Correct!

[Crazy Cat 40,158]

1 minute ago, Moda25 said:

@Crazy Cat Correct!

Thanks for the info.  As @nastra30 stated, the child cannot currently adjust status after entering via VWP.  

[powerpuff 6,129]

Here’s the policy manual section for reference:
 

From https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7 -- "A noncitizen admitted as a nonimmigrant without a visa under a Visa Waiver Program is barred from adjustment of status.[...] These bars do not apply, however, to those seeking to adjust status as an immediate relative of a U.S. citizen or VAWA-based applicants."

[Moda25 15]

@powerpuff thank you!

[dwheels76 5,465]

Also important point she also can not leave the US or she will incur a 10 year Ban for the overstay. When are you or the father eligible to file for citizenship? This is her only path she can take to staying here legally and getting a green card.

[Moda25 15]

@dwheels76 She knows about the ban if she leaves the country. The mother is the only one currently in the US and she couldn’t file her citizenship because she spent 2 years in Germany. She’s waiting to qualify to file under the 5 year rule.