iniaki

No, if he comes to the U.S., he would definitely be inspected. And, you are right about the wait it is very long.

Thanks for all the responses. You all are a plethora of information.

iniaki

What happens if he wasn't present?
are you referring to that form ( I don't remember what it is, something like 245 I???) that a beneficiary can fill out and pay $1000 fine due to overstaying?

doesn't that apply only to those who entered the U.S. without inspection?

crg

Are you sure they'd let a 4th preferrence sibling adjust in the US after such an overstay?

Folinskyinla

Hi Rete:

The order of the "preference" categories doesn't affect the availability of visa except for the "fall down" provisions when the "higher" classification allocations go unused. Each category gets a certain percentage.

BTW, any unused visa numbers from a fiscal year go over to the other side of the house so to speak in the following year -- e.g. any unused family numbers will be available for employment visas the next year and vice versa.

For the past several years, there have been many unused employment based numbers so they have been punted over to the family based categories. However, IMHO, the low usage of the EB numbers has been, in large part, due to the delays at the DOL and CIS [which is why I chuckle a little at some the complaints of delay on this NG -- they don't know what REAL delay is. But I digress]. Some EB categories are starting to backlog already and I wouldn't be surprised to see cut-off dates across the board.

BTW, the visa allocation system is somewhat of a black art performed in the bowels of Foggy Bottom and no one really understands it. I was involved in litigation in the early 80's on the system and it became evident quite quickly that no one could explain it -- so the court punted that it was up to the "expertise" of the witches and warlocks at the State Department.

Rete

Got it, Mr. F. I'm just re-enforcing the preferences categories ;-) 1 is still 1; 2 is now 2A; 3 is now 2B; 4 is now 3 and 5 is now 4.

It is amazing, though, isn't it that there are leftover visas when the wait is so darn long. You'd think there'd be nothing left like the chicken platter after a Sunday dinner ;-)

Now don't get me started on the EB categories ... man there is a hell of a lot to retain for an old lady. Started with the criminal charges this week and how ineligible became inadmissible and what crimes mean what and when misdemeanors are a problem while felonies are ..... I want to know if I pass these classes why the heck I can't tack Esq. after my name? My INA references take up 1/2 a notebook already and we aren't halfway through the course.

Only kidding.

Folinskyinla

Hi:

Join the club. I still think in terms of pre-1990 numerology, so I think 212(a)(19) when dealing with 212(a)(6)(C). There was one little trick in the regs about regaining a priority date lost by marriage when there was a subsequent divorce. Most knowledgable people knew about this. However, in the 1997 reorganization of the regulations, this quirk was QUIETLY eliminated.

In my bar mentoring, I kept mentioning this little quirk until a young lawyer privately e-mailed me that, like a good lawyer, he went to look up the authority for my position and he couldn't find it -- in fact, the regulations seemed to say the opposite. He was quite sheepish about it since I enjoy a good reputation on my knowledge of the Immigration Act. Well, I KNEW that the regs allowed for it, but I couldn't find it either. So, I pulled a 1994 volume of regs and found it in two minutes! So, I had to do a public mea culpa and explained the new provisions -- and I got a lot of repsonses that many DAO's were still approving cases that were no longer approvable!

So, those learned in the law are not infallible -- there is simply too much to learn. That is why I keep well thumbed volumes of the regs and act by my desk.

utopiacowboy

Hola mi querida, te envié una carta y no me respondiste. Que paso?

Jonathan McNeil Wong

Rete wrote:
    >>I know this is a Marriage based NG, but, since all of you have been so
    >>great and full of information, I thought I would ask this in the hopes
    >>that one of you would know.
    >>My mom sent an I-130 petition for her brother in 2000. I check the
    >>Texas Service center and it says they are looking at 130's for Sept.
    >>1999, after which, they have to wait for a visa number. The dept. of
    >>state is granting visa numbers to applicants who filed in March 1993.
    >>So as you can see a long, long, long, wait till he gets a visa number.
    >>My question is:
    >>If he is here in the U.S. waiting for his number, once he gets it, he
    >>can apply for AOS (I-485). Will he be granted AOS if he has remained
    >>illegal here all those years?
    >>Or, can he file for AOS and pay the $1000 fine for having been here
    >>illegally?
    >
    >
    > Depends on what your definition of illegal is. If he entered the US
    > without inspection and is undocumented, then no, he cannot. If he
    > entered with a valid visa and was inspected, then yes. BTW the wait for
    > a visa for a brother or sister of a USC is approximately 20 years.
    >

Careful! Your answer would be correct if 245(i) applied (see Stuart's
post elsewhere in this thread). Otherwise, the overstay would render
him ineligible.

The rule that says overstays are forgiven for relatives applies only to
immediate relatives (spouses, children, parents of USCs).

--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.

================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 URL: http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============

Jonathan McNeil Wong

Folinskyinla wrote:
    >>Got it, Mr. F. I'm just re-enforcing the preferences categories ;-)
    >>1 is still 1; 2 is now 2A; 3 is now 2B; 4 is now 3 and 5 is now 4.
    >>It is amazing, though, isn't it that there are leftover visas when the
    >>wait is so darn long. You'd think there'd be nothing left like the
    >>chicken platter after a Sunday dinner ;-)
    >>Now don't get me started on the EB categories ... man there is a hell
    >>of a lot to retain for an old lady. Started with the criminal charges
    >>this week and how ineligible became inadmissible and what crimes mean
    >>what and when misdemeanors are a problem while felonies are ..... I
    >>want to know if I pass these classes why the heck I can't tack Esq.
    >>after my name? My INA references take up 1/2 a notebook already and
    >>we aren't halfway through the course.
    >>Only kidding.
    >
    >
    > Hi:
    >
    > Join the club. I still think in terms of pre-1990 numerology, so I
    > think 212(a)(19) when dealing with 212(a)(6)(C). There was one little
    > trick in the regs about regaining a priority date lost by marriage when
    > there was a subsequent divorce. Most knowledgable people knew about
    > this. However, in the 1997 reorganization of the regulations, this
    > quirk was QUIETLY eliminated.
    >
    > In my bar mentoring, I kept mentioning this little quirk until a young
    > lawyer privately e-mailed me that, like a good lawyer, he went to look
    > up the authority for my position and he couldn't find it -- in fact, the
    > regulations seemed to say the opposite. He was quite sheepish about it
    > since I enjoy a good reputation on my knowledge of the Immigration Act.
    > Well, I KNEW that the regs allowed for it, but I couldn't find it
    > either. So, I pulled a 1994 volume of regs and found it in two minutes!
    > So, I had to do a public mea culpa and explained the new provisions --
    > and I got a lot of repsonses that many DAO's were still approving cases
    > that were no longer approvable!
    >
    > So, those learned in the law are not infallible -- there is simply too
    > much to learn. That is why I keep well thumbed volumes of the regs and
    > act by my desk.
    >

Interesting; I keep the CD ROM in my laptop instead. (Yes, I do have
hardcopy backup)

--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.

================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 URL: http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============