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

[igoyougoduke 1,628]

mother can file for child AOS when she becomes a US citizen

[Demise 1,163]

22 hours 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.

You can ordinarily only adjust status from ESTA or/and after an overstay as an immediate relative of a US Citizen (spouse, parent, unmarried child under 21).

Child of LPR wouldn't be able to adjust partly due to arrival on ESTA (INA 245(c)(4)) and partly due to the overstay (INA 245(c)(2)).

 

Only options would be for the mother to naturalize first or for the kid to undergo consular processing abroad. Minors do not incur re-entry bans, so a waiver shouldn't be needed for consular processing.

21 hours 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.

Well, since the kid is 9 the best option would be to file I-130 denoting that the kid will undergo consular processing. Make sure the kid leaves before incurring a ban. Then go attend the consular interview.

 

One major screw up that happened here was not adding the kid to the petition or if the kid was born after issuance of the immigrant visa just taking her with the mother. A child born to an LPR mother visiting abroad or a parent in possession of an immigrant visa that's still valid can just be admitted as an LPR to the US if that's during the first trip of the parent back to US within 2 years of birth.

 

What about the father, is he a citizen now? If he's a citizen, one way around this whole mess would be for him to be the petitioner, then the daughter could just adjust. Was he a citizen when the daughter was born?

Edited June 27 by Demise

[Crazy Cat 40,182]

4 minutes ago, Demise said:

What about the father, is he a citizen now?

The father is not a US citizen, and is not inside the US.

[EM_Vandaveer 2,378]

19 hours ago, dwheels76 said:

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.

A 9-year-old would not receive a ban, actually....