Question: My sister came to the U.S. on a work visa which expired a few months ago. She remained in the U.S. as she was waiting for an extension that did not come through. She is now out of status and is thinking of having our mother who is a permanent resident file for her. Our mother will be eligible to file for her citizenship in another year. My sister is currently married and her husband is living in the Island. She has no children. What is her best course of action at this time? Can our mother file for her and if so, what part will her husband play in everything. Our mother is living in the Ft. Lauderdale area.
Answer: Unfortunately, U.S. Residents (Green Card holders) cannot sponsor married adult children (there is no immigration category for that). Green Card holders can only sponsor spouses, minor children and adult, single children. The immigrant visa waiting line for spouses and minor children (called “2A category”) of Green Card holders is approximately 4-5 years. The immigrant visa waiting line for single adult children (called “2B category”) of Green Card holders is approximately 8-9 years.
Therefore your mother cannot sponsor your sister (and her husband) until she becomes a citizen – because your sister is married. Once your mom is a citizen and files to sponsor your sister and her husband (in the “3rd category”), the waiting time will be approximately 9-10 years if she remains married. There are also important issues for foreign nationals who have overstayed their I-94 status to consider BEFORE leaving the U.S. Under Immigration regulations, a foreign national who has remained in the U.S. for a certain period of time after his or her I-94 has expired, is subject to a “bar” from re-entering the U.S. - once they leave. After remaining in the U.S. for 180 days there is a 3-year “bar”, for 365 days, a 10-year “bar” from re-entering the U.S. However, it is important to remember that these re-entry “bars” only take effect once a person actually leaves the U.S.
Finally, under current regulations, most individuals who are not in legal immigration status in the U.S. are generally not eligible to obtain a Green Card. There are exceptions, including spouses, minor children and parents of U.S. Citizens, battered spouses and immigrants who qualify under section 245(i). However, as a general rule, all other family and employment sponsored immigrants who do not meet the special exceptions are ineligible to change status in the U.S. or adjust status to U.S. residency once the I-94 card has expired. Therefore it is extremely important that family members are careful not to advise their loved ones to come to the U.S. and allow their I-94 cards to expire after an I-130 family petition is filed, since an I-130 petition itself, does not provide an individual with any legal status in the U.S.
Of course we do expect there to be some sort immigration reform or amnesty by at least this time next year, so your sister and millions of other immigrants will be able to take advantage of that once the law is finally passed. I hope this is helpful to you.
Can I file for my out of status mother?
Question: I just had my Naturalization appointment last week and I was approved. I am only waiting for my swearing in ceremony notice. I desperately want to file for my mother who is here in Lauderhill living with me. She came to the U.S. on a tourist visa and her I-94 card expired over five years ago. I want to start getting ready to petition for her but first I want to make sure that she is eligible and know about how long it takes, is there a penalty to pay and will she have to go back to Jamaica to get her Green Card?
Answer: Since your mother entered the U.S. legally and has an I-94 card, she is likely eligible to adjust her status to U.S. Residency inside the U.S. and is not required to return to Jamaica to process through the U.S. Consulate. There is no required penalty to pay, since the Parent of a U.S. Citizen is in a special category called “Immediate Relatives”. Other family members in this category include spouses and minor children. The processing time for parents is becoming more streamlined and in many cases there is no USCIS Residency Interview required. In such cases, the Green Card is received in the mail in about 3-4 months from the time for filing the residency application. For cases which require interviews, it generally takes about 3-4 months for the Interview appointment and both the parent and child must attend.
*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understand that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call your state’s attorney Bar Association.
