Confused about who can file on my behalf.

[Blu]

Hi,

In July 2005, My mother filed for adjustment of status under 245(i), based on an approved petition filed on her behalf by my aunt in 1993. My mom was out of status, but since the petition was filed before January 14th 1998, she qualified to file for adjustment of status under 245(i). I on the other hand, "aged out" by turning 21 several years ago, but as I understand it, I'm considered to be a derivative beneficiary of the original petition filed by my aunt, and this entitles me to the benefits of 245(i).

My question is this, if everything goes well, and my mother receives her green card, can she file form I-130 on my behalf, or will some other family member have to file for me? Also, if form I-130 is filed on my behalf, will the fact that my I-94 (Arrival/Departure Record) is expired, and I'm out of status, automatically cause my petition to be denied? Any help you guys can give me, would be greatly appreciated. Thanks.

 

[payala]

Your mom can file it for you but it will take at least 5 years of being illigally in the country. The overstay is only forgiven to spouse, parents or children under 21 of a USC. You don't qualify now, and won't qualify in 5 years after/if your mom becomes a USC because you would be over 21.
Sorry

 

[Bella Blues]

Hi,

In July 2005, My mother filed for adjustment of status under 245(i), based on an approved petition filed on her behalf by my aunt in 1993. My mom was out of status, but since the petition was filed before January 14th 1998, she qualified to file for adjustment of status under 245(i). I on the other hand, "aged out" by turning 21 several years ago, but as I understand it, I'm considered to be a derivative beneficiary of the original petition filed by my aunt, and this entitles me to the benefits of 245(i).

My question is this, if everything goes well, and my mother receives her green card, can she file form I-130 on my behalf, or will some other family member have to file for me? Also, if form I-130 is filed on my behalf, will the fact that my I-94 (Arrival/Departure Record) is expired, and I'm out of status, automatically cause my petition to be denied? Any help you guys can give me, would be greatly appreciated. Thanks.

Were you included in your aunt's petition when she petitioned for your mom? Or was the petition solely for your mom? How old were you back in 1993 when your aunt petitioned your mom? If you are not a beneficiary, your mom can still petition you when she gets her greencard as long as you are single. It will really take a long time though, so you have to be very patient. My mom petitioned me in 1998 when I was 21.5 years old, and I am still waiting for the priority date to become current after 8 years.

 

[Blu]

Your mom can file it for you but it will take at least 5 years of being illigally in the country. The overstay is only forgiven to spouse, parents or children under 21 of a USC. You don't qualify now, and won't qualify in 5 years after/if your mom becomes a USC because you would be over 21.
Sorry

I was under the impression that children who "age-out" by turning 21, or by marrying, will still be entitled to the benefits of 245(i) if they were "derivative beneficiaries" of a visa petition filed on or before April 30, 2001. Is that not correct? I was included in my mother's petition. I was 15 in 1993. Also, would the fact that my I-94 (Arrival/Departure Record) is expired, and I'm out of status, automatically cause my I-130 petition to be denied?

 

[payala]

Whatever I said is related to IF your mom is going to file for you as a green card holder. I don't know anything about derivative beneficiaries or stuff like that.

 

[Blu]

Whatever I said is related to IF your mom is going to file for you as a green card holder. I don't know anything about derivative beneficiaries or stuff like that.

Gotcha. By the way, does anyone know the answer to my question about filing form I-130 with an expired I-94 (Arrival/Departure Record) and being out of status. Will those two things automatically cause my petition to be denied? Thanks.

 

[Bella Blues]

I was under the impression that children who "age-out" by turning 21, or by marrying, will still be entitled to the benefits of 245(i) if they were "derivative beneficiaries" of a visa petition filed on or before April 30, 2001. Is that not correct? I was included in my mother's petition. I was 15 in 1993. Also, would the fact that my I-94 (Arrival/Departure Record) is expired, and I'm out of status, automatically cause my I-130 petition to be denied?

If you were included in your mom's petition, you should have been able to adjust your status at the same time as her even if you aged out, because you were under 21 when the petition was filed. 245(i) means you do not have to go back to your home country to file your adjustment of status. Many years ago, if a petition was filed on your behalf and you are already in the US, you have to go back to your country and file your AOS there. 245(i) changed that. Now you can apply for AOS here. Yes, since your petition was filed before 4/30/01 you can adjust your status here under the 245(i) amendment. I also had an expired I-94 when my mom filed a petition for me and I've been to an immigration lawyer. He said not to worry about it. You should talk to a lawyer about your case because he/she can answer your questions. Find a lawyer that offers free consultation, you will be able to ask about your situation during the consultation and you are not obligated to hire them or anything like that. It's really worth it! You will receive peace of mind!!! Before I talked to a lawyer I was really worried and afraid, had so many questions in my head. I thought my case was severe, as it turned out it is quite an easy situation, the only drawback is that I have no choice but to wait for the priority date to become current.