119 year old female. Need help.

QueenElizabeth

Registered Users (C)
Hello forum,

I am a 19 yrs old female. I came to US with my parents legally, however I overstayed my visa. At age 18 (on my birthday)I received my DACA (defered action) approval for 2 years expiring on September 27 2014.

And now, Just received the approved i-130, after my mother has petitioned me for GC. She is an LPR Which she received through my older sister.

My question;

1. Am I still legal concerning the 3 year entry ban, as I received my DACA, BEFORE THE AGE OF 18.
2. Can I apply for AOS, as I came in legally and did not overstay above the age of 18, having received my Defered Action approval.
3. What are the criteria for having to go for consular processing, rather than AOS.

I would very much appreciate any advice you could give me.
 
This deferred action is a new thing and the rules aren't clear. So you need to go ahead and file for AOS and see what happens, unless you're sure that you're ineligible. The F2A category is still current in September, but it probably will retrogress in October or November, so make sure your AOS application arrives at USCIS before the end of September. You'll need to include proof that you received deferred action.

Forget about consular processing, because there's no way you're getting an interview at the consulate before the likely retrogression happens in October, and the retrogression could have you stuck outside the US for over a year.
 
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Haha! That's funny! The TV was on while I was registering to this forum and queen Elizabeth was mentioned, so I chose it as my user name. And then I checked my posting, after I submitted it, there it was 119 yrs old female, but it would not allow me amend it. I am sure it will make some loughs!


Anyway thank you for your advice JackoLantern. I read many of your posts and learned a lot from it. Like you say DACA is new and therefore I could not find any reference to it. You ask "unless I was sure that If I don't qualify for AOS". Well, the I797 for the approved I-130 says that according to the evidence submitted, I do not qualify for the AOS. It also says if I thought that I was eligible, then I should contact the local USCIS office. HOWEVER WHEN MY MOTHER APPLIED FOR I-130, I did not have the, DACA APPROVAL. As you say perhaps this DACA may have changed the eligibility for the AOS.

Do you think I should just send my application through for AOS, or should I get an infopass and go and see the local USCIS first.
 
Well, the I797 for the approved I-130 says that according to the evidence submitted, I do not qualify for the AOS.

That was based on the facts at the time the I-130 was submitted, and things have changed. Don't pay attention to it.

For something like this, don't ask USCIS if you're eligible; just go ahead and file it anyway. They sometimes give wrong answers to "what if", "can I" type of questions. Those informal questions don't get the same level of review and scrutiny as a formal application process. This is a gray area, and even if they are correctly telling you NO based on the instructions they have been given, a court or USCIS director could later issue a ruling that says individuals in your situation are eligible for AOS.

If you filed this summer and it got denied, such a ruling could be used to reinstate your case. But if you didn't file, you might be screwed if retrogression and/or the expiration of the deferred action prevents you from filing after that ruling. So go ahead and file because it may be your only chance!
 
I will be sending it all in next week once I get my medical send to me. And I will keep the forum informed of the outcome.

One more question! I have a 13 year old brother. He entered the US with my parents on B1/B2 on 2005 and for several years he remained in the US on L2 visa. His last entry was on a parol document and he was granted permit to stay until June 2010. He became illegal after he was denied the I-140 Petition along with the main beneficiary.

To make the long story short, he has now overstayed, and he is/ was(at the time when I applied) too young to apply for DACA. I think you need to be at least 15 for DACA (Deferred Action).

The question is this, IS HE SUPPOSE TO GO BACK FOR CONSULAR PROCESSING, or can he do the (AOS) in the US. Was surprised his I-797 (approved I-130) didn't even mention anything about him not being qualified for the AOS, whereas my I-797 did actually say I may not be qualified. And on both I-797's said that they have notified the NVC center.

Again I would very much appreciate your feedback on this.
 
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The question is this, IS HE SUPPOSE TO GO BACK FOR CONSULAR PROCESSING, or can he do the (AOS) in the US.
Without deferred action or some other change back into legal status, he'll need to leave the US and go for consular processing, unless the parent who filed the I-130 becomes a US citizen. If adjustment of status was selected for question 22 of his I-130, the parent who filed the I-130 will need to file I-824 to transfer the case to the consulate. But if AOS was not selected there, the NVC will automatically forward it to the consulate.

Fortunately for him, with consular processing for a green card they won't penalize him for overstaying, because he's under 18. However his overstay would be a big problem if he applies for a nonimmigrant visa.

Depending on when the I-130 was filed, it could still take several months to over a year from now until the NVC has forwarded the case and the consulate is ready to see him, so he can expect to wait until sometime next year before taking further action on the final stage of his application.

Was surprised his I-797 (approved I-130) didn't even mention anything about him not being qualified for the AOS, whereas my I-797 did actually say I may not be qualified.
Was he in legal status when the I-130 was filed? If yes, that would explain it. But anyway, that note about not being eligible for AOS is unreliable, as it is not based on the entire picture of the situation. A comprehensive evaluation of eligibility is done only when you actually apply for AOS.
 
When you provide updates or have more questions about your case, please post in the Family-Based Green Cards section, since your application is family-based and that section of the forum gets much more activity than here.

Thanks for letting me know I will defiantly do that. Is there a way to move the whole post to that area?
 
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Without deferred action or some other change back into legal status, he'll need to leave the US and go for consular processing, unless the parent who filed the I-130 becomes a US citizen. If adjustment of status was selected for question 22 of his I-130, the parent who filed the I-130 will need to file I-824 to transfer the case to the consulate. But if AOS was not selected there, the NVC will automatically forward it to the consulate.
Parent become eligible for US citizen in 4/ 5 years.

On question 22 there was no question. It simply asked to complete if the Rrealtive was in the US and the City & State where the AOS was to take place. And next to it it stated that if the relative was not eligible for AOS, give the consul address.

DO YOU THINK WE SHOULD JUST SEND IN THE I -485, and see what will happen? Or do you you think if we do that, we might lose the fees, and they may deny and return the I-485 file?
Fortunately for him, with consular processing for a green card they won't penalize him for overstaying, because he's under 18. However his overstay would be a big problem if he applies for a nonimmigrant visa.

So you mean if he goes out and comes back in on a visa waver, will that make him legal?

Depending on when the I-130 was filed, it could still take several months to over a year from now until the NVC has forwarded the case and the consulate is ready to see him, so he can expect to wait until sometime next year before taking further action on the final stage of his application.
His I-130 was filed 10 months ago. What further action? I would appreciate if you coud elaborate on that.

Was he in legal status when the I-130 was filed? If yes, that would explain it. But anyway, that note about not being eligible for AOS is unreliable, as it is not based on the entire picture of the situation. A comprehensive evaluation of eligibility is done only when you actually apply for AOS.

No he was not legal! His parol expired in June 2010, and the I-130 was filed two years later on Oct 2012. Should we send his I485 in. Or?

Again thank you for sharing your time.

BTW, I tried to post on family based section of the forum and it didn't show for some reson!
 
On question 22 there was no question. It simply asked to complete if the Rrealtive was in the US and the City & State where the AOS was to take place. And next to it it stated that if the relative was not eligible for AOS, give the consul address.

What I meant was that if a location in the US for AOS was chosen for question 22, USCIS is likely to hold the file within the US in anticipation of AOS, instead of automatically forwarding it to the consulate. That would require his parent to file I-824 to get it forwarded to the consulate, otherwise it would just sit idle for a long time (months to years) until maybe they decide to wipe the dust off of it and forward it anyway after enough time passed without an AOS filing.

DO YOU THINK WE SHOULD JUST SEND IN THE I -485, and see what will happen?
Eligibility for AOS based on a petition filed by a permanent resident parent or spouse requires legal presence* in the US at the time AOS is filed. Your brother definitely is not here legally, so filing AOS would be a clear waste of money. Whereas you've been granted permission to stay for a while so you have a chance depending on the exact interpretation of what your status really is and its relation to AOS.

So you mean if he goes out and comes back in on a visa waver, will that make him legal?
Because of his overstay, he automatically lost eligibility to enter the US with the visa waiver. And even if he managed to re-enter with the visa waiver, spouses and children of permanent residents are automatically disqualified from filing for AOS if their last entry to the US was with the visa waiver.

He would need an actual visa to reenter, but there's no way they're granting him a tourist visa after he recently overstayed and while his parents are living in the US.

Did you enter with the visa waiver? If yes, that would also make you ineligible for AOS while your parent is still a permanent resident unless your deferred action somehow exempts you from that restriction.

His I-130 was filed 10 months ago. What further action? I would appreciate if you coud elaborate on that.
Before the interview at the consulate he'll have to file form DS-230, and do a medical exam at an authorized doctor in the country where the consulate is located.


*some people who are in the US illegally and filed the appropriate paperwork to qualify for 245(i) by April 2001 are still allowed to file AOS when present illegally as the spouse or child of a permanent resident. However you haven't indicated that you've been in the US that long with the relevant paperwork filed on your behalf.
 
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Did you enter with the visa waiver? If yes, that would also make you ineligible for AOS while your parent is still a permanent resident.
No. In fact we entered with parole document and was interviewed at the border. (I-140 petition).

What I meant was that if a location in the US for AOS was chosen for question 22, USCIS is likely to hold the file within the US in anticipation of AOS, instead of automatically forwarding it to the consulate. That would require his parent to file I-824 to get it forwarded to the consulate, otherwise it would just sit idle for a long time (months to years) until maybe they decide to wipe the dust off of it and forward it anyway.
Funny! So Basically we should send in the I-824 ASAP. Would the visa be allocated to him, as it is now current and available? Or visa availability would only be considered from the time consular processing start?
He would need an actual visa to reenter, but there's no way they're granting him a tourist visa after he recently overstayed and while his parent(s) are living in the US.
how about being banned 3/10 year from US. Will he be able to get his interview done without being discriminated for his overstay? He is only 13 year old.

Thank You:)
 
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Funny! So Basically we should send in the I-824 ASAP.
If question 22 was left blank or your parent selected a location outside the US for Q22, I-824 won't be necessary because the NVC will automatically forward it to the consulate. Otherwise, yes they should file I-824 ASAP. I-824 processing will take a few months.

Would the visa be allocated to him, as it is now current and available? Or visa availability would only be considered from the time consular processing start?
When the interview is scheduled with the consulate, a visa number would be tentatively allocated to him. Then after the interview if he's approved it will be officially assigned to him and he'll get an immigrant visa stamped in his passport which he can use to enter the US as a permanent resident. But the interview won't be scheduled in the first place unless the consulate has received his file and the visa bulletin indicates availability based on his priority date.

how about being banned 3/10 year from US. Will he be able to get his interview done without being discriminated for his overstay? He is only 13 year old.
As I mentioned above in post #7, for green cards the consulate won't penalize him for overstaying because he's under 18. So if he waits another year or so inside the US until the consulate is ready to see him, he'd still be under 18 so that won't prevent him from being approved at the consulate.

However, for most nonimmigrant visas like tourist visa or student visa they would penalize him because they'd be worried that he'd overstay again. But with green cards there is no such thing as overstay, since green card holders are allowed to stay in the US for life (unless the green card status is later revoked).
 
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First of all I want to thank you for your patience and for making it so clear.

If question 22 was left blank or your parent selected a location outside the US for Q22, I-824 won't be necessary because the NVC will automatically forward it to the consulate. Otherwise, yes they should file I-824 ASAP. I-824 processing will take a few months.

Well on the question 22, it has 2 spaces. One asks for US city and state. Next to it says give country, if not qualified for AOS. So,we have filled both areas, giving both US AND CONSULATE IN home country. So I was presuming if they see him not being eligible for AOS, THEY WOULD AUTOMATICALLY SEND TO CONSULATE.

Also this is what says on his approved I-130.
the above petition has been approved. We have send the original visa petition to the Department of State National Visa Center (NVC), 32 Rochester Avenue, Prtsmouth, 03801-2909.
NVC processes all approved immigrant visa petitions that need consular action. It also determines which consular post is appropriate consulate to complete visa processing. NVC will then forward the approved petition to that consulate.

The NVC will contact the person for whom you are petitioning(beneficiary) concerning further immigrant visa processing steps.

You should allow a minimum of 30 days for Department of State processing before you contacting the NVC.
Having above info, do you think we should just fill out the I-824 and pay the $405 and send it. Or does it look like they already know it's going to be consular processing?

When the interview is scheduled with the consulate, a visa number would be tentatively allocated to him.
So if We can get the I-824 in immediately (that's if they are not already processing it), they might allocate a visa number!? As F2A visa numbers are current until the end September.

However, for most nonimmigrant visas like tourist visa or student visa they would penalize him because they'd be worried that he'd overstay again. But with green cards there is no such thing as overstay, since green card holders are allowed to stay in the US for life (unless the green card status is later revoked).

Great explanation. Thank you.
 
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Well on the question 22, it has 2 spaces. One asks for US city and state. Next to it says give country, if not qualified for AOS. So,we have filled both areas, giving both US AND CONSULATE IN home country. So I was presuming if they see him not being eligible for AOS, THEY WOULD AUTOMATICALLY SEND TO CONSULATE.

There are a number of considerations here.

1. The desire to pursue AOS. If the US city and state are provided, they'll take that to mean the individual wants AOS. If left blank, they'll assume the person does not want AOS even if eligible, so they'll forward it to the consulate.

2. The NVC's evaluation of eligibility to pursue AOS. If the desire for AOS has been indicated, but the NVC feels the individual is not eligible, they'll forward the case to the consulate unless is AOS is filed before it is forwarded. They will contact the petitioner before forwarding it, so there will be some warning.

3. Actual eligibility to pursue AOS based on all the current facts. The NVC's perception of eligibility (or lack thereof) is often different from actual eligibility, as the NVC decides eligibility based on a quick evaluation of partial or outdated information.

If it's been at least 30 days since I-130 approval, have your parent contact the NVC.

So if We can get the I-824 in immediately (that's if they are not already processing it), they might allocate a visa number!? As F2A visa numbers are current until the end September.
At this point it's not possible to have all the following happen by the end of September -- the NVC forwards the case, the consulate looks at the file and schedules the interview, and your brother completes the medical and interview. They just don't move that fast.

It might be possible to get all of that done in 3 or 4 months, but in 3 or 4 months F2A probably won't be all-current anymore. However it might be current for your brother's I-130, depending on his priority date. What is the priority date of his I-130? In July the cutoff for F2A was October 2011. So in November or December it's reasonable to expect it to show late 2011 or early 2012. If your brother's I-130 priority date is in that time frame or earlier, a consular interview at the end of this year could happen.
 
If it's been at least 30 days since I-130 approval, have your parent contact the NVC.

September 1st will be 30 days.

What is the priority date of his I-130? In July the cutoff for F2A was October 2011. So in November or December it's reasonable to expect it to show late 2011 or early 2012
Priorety date October 11, 2012.
 
September 1st will be 30 days.
So in a couple weeks your parent who filed the I-130 should contact the NVC to find out what's happening and what to do with your brother's case to get the consular processing going. Or they might contact your parent first.

Meanwhile, you don't need to wait for a response from NVC because you're working on filing for AOS.

Priorety date October 11, 2012.
So realistically that means mid- to late-2014 for your brother's consular interview. Of course, they don't always operate in a "realistic" manner so anything could happen. This F2A all-current was very unusual and unexpected.
 
So in a couple weeks your parent who filed the I-130 should contact the NVC to find out what's happening and what to do with your brother's case to get the consular processing going. Or they might contact your parent first.

Meanwhile, you don't need to wait for a response from NVC because you're working on filing for AOS.

I have already send in mine today for AOS. Thanks to your advice and your generosity in spending your time, things are much clearer. As soon as I have something, I will post it.

So realistically that means mid- to late-2014 for your brother's consular interview. Of course, they don't always operate in a "realistic" manner so anything could happen. This F2A all-current was very unusual and unexpected.
Mid October 2014 is what I was expecting for mine, but suddenly I saw on line that my PD was current. I was shocked. Like you say, when I applied in 2012, I was told I would probably have to wait few years! LET'S HOPE THAT THEY WOULD ACCEPT MY DEFERED ACTION AS BEING ELIGABLE FOR AOS.

About my brother we'll wait till the end of the months and contact the NVC. Anyway, in a year's time I believe he can go for Differed Action and then take my route. Because, he is too affraid to leave the country for the consular interview, in case he can't get back in!
 
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About my brother we'll wait till the end of the months and contact the NVC. Anyway, in a year's time I believe he can go for Differed Action and then take my route. Because, he is too affraid to leave the country for the consular interview, in case he can't get back in!

If he can get a consular interview before becoming eligible for AOS, he should leave the US and go to the interview. That is a much more reliable path than waiting for differed action which is a program that could be terminated at any time.

You may have to do the same if it turns out your deferred action doesn't make you eligible for AOS. In particular, you don't want to accumulate 180 days of unlawful presence.
 
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If he can get a consular interview before becoming eligible for AOS, he should leave the US and go to the interview. That is a much more reliable path than waiting for differed action which is a program that could be terminated at any time.
will do that. Thanks for your advice. I suppose he won't be penalized for his overstay, being under 18 (actually under 14). That is the law. Right!? (That's what stated on USCI website)

With me, I hope they do accept. I wonder, if they accept the application and send me a receipt, that would mean that they have already accepted me for AOS and they won't come back later and say that I can't do AOS!
 
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