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Adjustment of status through family sponsorship after overstay

Adjustment of status through family sponsorship after overstay

Old Nov 9th 2021, 12:43 am
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Default Adjustment of status through family sponsorship after overstay

I've been living in the USA for 25 years. I entered on a work visa and overstayed. I have a daughter who is a US citizen and is now about to turn 21. I would like to get some advice on how she could sponsor me so that I can finally get legal. I have paid taxes in the USA every year that I've been here, have always had health insurance and have never applied for any kind of government benefit.
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Old Nov 9th 2021, 1:07 am
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Default Re: Adjustment of status through family sponsorship after overstay

I suggest you consult an attorney, this is beyond the scope of an Internet forum. Google for AILA. Good luck.
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Old Nov 9th 2021, 1:28 am
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by Ilovetheusa View Post
I've been living in the USA for 25 years. I entered on a work visa and overstayed. I have a daughter who is a US citizen and is now about to turn 21. I would like to get some advice on how she could sponsor me so that I can finally get legal. I have paid taxes in the USA every year that I've been here, have always had health insurance and have never applied for any kind of government benefit.
You are an immediate relative so you can adjust in country, she petitions for you after she turns 21 files an I 130, includes Employment Authorization and Advanced Parole so you can travel and return if needed.

Eventually you will be interviewed but there is not really much to ask a parent of a US Citizen. Interview time lines vary significantly.

Last edited by scrubbedexpat099; Nov 9th 2021 at 1:32 am.
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Old Nov 9th 2021, 1:41 am
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by Boiler View Post
You are an immediate relative so you can adjust in country, she petitions for you after she turns 21 files an I 130, includes Employment Authorization and Advanced Parole so you can travel and return if needed.

Eventually you will be interviewed but there is not really much to ask a parent of a US Citizen. Interview time lines vary significantly.
Although this is an immediate relative case, OP’s statement of facts discloses potential issues that should be explored and prepared for.

OP’s case might very well go like a hot knife through butter, but it may easily go pear shaped.
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Old Nov 9th 2021, 2:15 am
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Default Re: Adjustment of status through family sponsorship after overstay

I personally would not be using AP after such a lengthy overstay. Good question for the attorney.

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Old Nov 9th 2021, 2:34 am
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by Ilovetheusa View Post
I've been living in the USA for 25 years. I entered on a work visa and overstayed. I have a daughter who is a US citizen and is now about to turn 21. I would like to get some advice on how she could sponsor me so that I can finally get legal. I have paid taxes in the USA every year that I've been here, have always had health insurance and have never applied for any kind of government benefit.
Where are you from <<<snip>>>? Not that those things should make a difference.

Last edited by Jerseygirl; Nov 9th 2021 at 5:05 pm. Reason: Unsuitable
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Old Nov 9th 2021, 12:40 pm
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Default Re: Adjustment of status through family sponsorship after overstay

A trip to an immigration attorney is in order. This is not a 'do it yourself' case at all.
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Old Nov 9th 2021, 11:52 pm
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by Boiler View Post
You are an immediate relative so you can adjust in country, she petitions for you after she turns 21 files an I 130, includes Employment Authorization and Advanced Parole so you can travel and return if needed.

Eventually you will be interviewed but there is not really much to ask a parent of a US Citizen. Interview time lines vary significantly.
He also needs to include the I-485 and I-765 for adjustment of status and for employment authorization.

Under no circumstances should he apply for and if received somehow the AP (form I-131). If used and he left the US, would not be able to return to the US and would incur a ban from re-entry in the future for a period of time and/or a lifetime.
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Old Nov 10th 2021, 1:04 am
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by Rete View Post
He also needs to include the I-485 and I-765 for adjustment of status and for employment authorization.

Under no circumstances should he apply for and if received somehow the AP (form I-131). If used and he left the US, would not be able to return to the US and would incur a ban from re-entry in the future for a period of time and/or a lifetime.
I actually know someone who did but that seems unlikely to be a major issue in the case probably he can wait for GC
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Old Nov 10th 2021, 6:35 am
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Default Re: Adjustment of status through family sponsorship after overstay

You are in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), and as such your eligibility for Adjustment of Status is not affected by being out of status at the time of filing, having been out of status in the past, or unauthorized employment. This section summarizes all the AOS bars that do not apply to Immediate Relatives. If the only issues are what you mentioned in your question, then it should be a very straightforward process. No waivers or anything special is necessary, no matter how many years or decades you have overstayed or worked illegally. You wouldn't need a lawyer if you are comfortable filling out forms yourself.

However, there could potentially be issues based on things that you have not mentioned. For example, I presume you have worked during these years. Did you fill out I-9 when you started work, and if so, did you select that you were a US citizen, US national, US permanent resident, or other alien authorized to work? If you ever falsely claimed to be a US citizen, that is a lifetime ban with no waiver. These are the kinds of things the government might look into, so it would be useful if you had considered them before you apply, and if you are not familiar with the immigration laws yourself, then finding someone who is familiar with the immigration laws like a lawyer, to help you look over your case and think of potential issues you might not have thought about, could be helpful.
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Old Nov 10th 2021, 6:38 am
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by Rete View Post
Under no circumstances should he apply for and if received somehow the AP (form I-131). If used and he left the US, would not be able to return to the US and would incur a ban from re-entry in the future for a period of time and/or a lifetime.
This is incorrect. According to the BIA decision in Matter of Arrabally (2012), departure on a grant of Advance Parole and return on that same Advance Parole does not count as a departure for the purposes of triggering the unlawful presence ban. (Also a ban for accrual of unlawful presence and departure would only be 10-year, not lifetime.)
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Old Nov 10th 2021, 5:35 pm
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by newacct View Post
This is incorrect. According to the BIA decision in Matter of Arrabally (2012), departure on a grant of Advance Parole and return on that same Advance Parole does not count as a departure for the purposes of triggering the unlawful presence ban. (Also a ban for accrual of unlawful presence and departure would only be 10-year, not lifetime.)
In my opinion, I think the issue may very well be unsettled. I recall that the BIA would issue cases using “interpretation” to go contrary to express statutory language. Arrabally is an example. Similarly, the prior year, the BIA engaged in such statutory analysis in Matter of Camarillo. I recall that at the time, I had the same reaction in reading those two cases: what are they thinking? The statute is clearly the opposite. Do note that Arabally had a dissent which says exactly that. Why do I mention this? The type of statutory analysis used by the BIA in Camarillo, was found wanting by the Supreme Court, twice. See Pereira v Sessions and Niz-Chavez v Garland. In my mind, there is cause for concern.
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Old Nov 13th 2021, 3:20 pm
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by newacct View Post
This is incorrect. According to the BIA decision in Matter of Arrabally (2012), departure on a grant of Advance Parole and return on that same Advance Parole does not count as a departure for the purposes of triggering the unlawful presence ban. (Also a ban for accrual of unlawful presence and departure would only be 10-year, not lifetime.)
There are lifetime bans issued for certain offenses. My nephew has received just such a ban for checking US Citizen on I-9 because there was nothing to indicate he was in the US because of Native American status.
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Old Nov 13th 2021, 3:36 pm
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Default Re: Adjustment of status through family sponsorship after overstay

The OP posted and ran so not an issue in this case

There is always the possibility on any immigration issue of issues not being disclosed, he mentioned he worked, could have been as a drug dealer, no waiver.

So what do you do, say discuss everything with an immigration lawyer as a default?

Implied they had worked, paid taxes.
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Old Nov 13th 2021, 4:34 pm
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Default Re: Adjustment of status through family sponsorship after overstay

Originally Posted by Boiler View Post
The OP posted and ran so not an issue in this case

There is always the possibility on any immigration issue of issues not being disclosed, he mentioned he worked, could have been as a drug dealer, no waiver.

So what do you do, say discuss everything with an immigration lawyer as a default?

Implied they had worked, paid taxes.
Would have been interesting to discover if he had left the US at anytime to return to his own country or for vacation and returned to the US to continue working and living here illegally without a visa. What did he tell them at the POE when re-entering?
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