I-485 App, Currently Illegal

[amk77]

I am an attorney that does not practice in the area of immigration law. A friend of mine has asked that I help with the preparation of immigration forms as she does not have the money to pay an attorney to assist. I was wondering if anyone could point me in the right direction to answer the following question:

Can an individual that is currently in this country illegally (more than 180 days) submit and I-485 through a sister that is a US Citizen? The person entered the country approx two years ago on a tourist visa and it has since expired.

It is my understanding that the person applying for I-485 needs to be in the country legally at the time of the application (except for certain marriage cases).

I am inclined to direct my friend to a low cost or free immigration service becuase I am afraid that I will not be able to properly advise her. Thoughts?

Thank you in advance for your responses.

[pianoplayer]

Originally Posted by amk77

I am an attorney that does not practice in the area of immigration law. A friend of mine has asked that I help with the preparation of immigration forms as she does not have the money to pay an attorney to assist. I was wondering if anyone could point me in the right direction to answer the following question:

Can an individual that is currently in this country illegally (more than 180 days) submit and I-485 through a sister that is a US Citizen? The person entered the country approx two years ago on a tourist visa and it has since expired.

It is my understanding that the person applying for I-485 needs to be in the country legally at the time of the application (except for certain marriage cases).

I am inclined to direct my friend to a low cost or free immigration service becuase I am afraid that I will not be able to properly advise her. Thoughts?

Thank you in advance for your responses.

Basically no. The priority date for brothers/sisters of US citizens is so behind, that it will take years for the client to adjust this way. The sister would first need to file an I130 petition, but for this preference category it will take years for this petition to become current. Only after it is approved and current(many years), can she apply for adjustment of status with I485.

Therefore, she cannot file the I485 for a very long time and until then she has no legal status here and can be removed. Only when you file I485, can she be in valid "pending AOS" status.

If she wants to stay here eventually, her sister can go ahead and file the I130, but she will only be able to adjust in years. Another issue is, bc she has overstayed for such a long time, she will probably get a ban from entering the US for a certain period of time, 10 years possibly. So it is a bit of a catch 22 situation, she can't really stay(at least not if she is discovered by USCIS and of course I cannot advocate further illegal stay) and if she leaves, she maybe cannot come back for a long time, even if a petition is approved for her eventually, because they will not issue her an immigrant visa overseas until the ban is over.

Case law on this is complicated and perhaps you should refer her for a consultation with a local immigration lawyer, at least to see if you can mitigate any ban damages. Perhaps they can suggest a creative solution after reviewing the facts of the case, but off the top of my head, this is all I can come up with.

Best wishes

[amishah]

I don't think overstaying is forgivable in case of sibilings. I think overstaying is only forgivable in case of immediate relatives like spouse or parents or sons/daughters of USC.

[pianoplayer]

Originally Posted by amishah

I don't think overstaying is forgivable in case of sibilings. I think overstaying is only forgivable in case of immediate relatives like spouse or parents or sons/daughters of USC.

Exactly

[rex1960]

Originally Posted by amk77

I am an attorney that does not practice in the area of immigration law. A friend of mine has asked that I help with the preparation of immigration forms as she does not have the money to pay an attorney to assist. I was wondering if anyone could point me in the right direction to answer the following question:

Can an individual that is currently in this country illegally (more than 180 days) submit and I-485 through a sister that is a US Citizen? The person entered the country approx two years ago on a tourist visa and it has since expired.

It is my understanding that the person applying for I-485 needs to be in the country legally at the time of the application (except for certain marriage cases).

I am inclined to direct my friend to a low cost or free immigration service becuase I am afraid that I will not be able to properly advise her. Thoughts?

Thank you in advance for your responses.

You/your friend might want to check out this
http://www.uscis.gov/graphics/howdoi/hdi245i.htm
before you give up hope