AOS eligibility

[jah bless]

what are your chances of getting an i-485 (family based) approved by USCIS if you have been out of status for years. My lawyer claims it is feasible. If i try consular processing my case will be dead on arrival. My other option is to buy a plane ticket with the lawyer fees and application fees and save myself the headache.

 

[Jackolantern]

what are your chances of getting an i-485 (family based) approved by USCIS if you have been out of status for years. My lawyer claims it is feasible.

Depends on what kind of family-based immigration you are talking about, and whether you qualify for 245(i).

Please provide more information so we can figure out if AOS is feasible.

1. Who is the sponsor -- your parent? USC spouse? LPR spouse? Brother/Sister? Somebody else?
2. Are you 21 or older?
3. How long ago did you last enter the US? Did you enter with a visa, or with the visa waiver? Or entered illegally?
4. What was your status before you lost it?
5. How long have you been out of status?

 

[jah bless]

My mom (naturalized us citizen) filed an i-130 which will be current soon. I have been in the US since 1995 with an F-1 visa. My i-94 reads valid for duration of status. I didn't attend school during my stay. Obtained employment through misrepresentation.

The consular in my home country is notorius for denying visas over frivilous reasons. My case wouldn't stand a chance based on the overstay and employment.

Since all my family members are in the US i am thinking of claiming a hardship waiver of some sort. As an interview here stands a chance.

 

[Jackolantern]

So you didn't attend classes for even one semester after entering the US with your F1 visa? Not even one month?

I presume you are several years older than 21 by now, and your mother filed the I-130 after you turned 21, so the CSPA doesn't protect you, and with your overstay you have no chance of adjusting status based on a parent's petition, unless you qualify for 245(i). Did anybody file any kind of immigrant petition for you on or before April 2001?

The consular in my home country is notorius for denying visas over frivilous reasons.

While they can reject most nonimmigrant visas for arbitrary and trivial reasons, they can't reject immigrant visas so easily.

Since all my family members are in the US i am thinking of claiming a hardship waiver of some sort.

You'll have to prove that THEY will face extreme hardship if you leave the US, not that you will face hardship.

 

[jah bless]

Thanks for the advice.ring I never did attend school, and no petion was filed on my behalf in 2001. Lastly what if i filed the i-485 and USCIS denies it. Would the option of consular processing be available to me even with the denial.

 

[Jackolantern]

Thanks for the advice.ring I never did attend school, and no petion was filed on my behalf in 2001.

What about before 2001? And was anything filed for either of your parents back then? In some cases it is possible to qualify for 245(i) grandfathering through a parent.

Lastly what if i filed the i-485 and USCIS denies it.

You will have to leave the US. Filing I-485 in the over-21 category requires you to have legal status when you file it, unless you qualify for 245(i). Without 245(i), your I-485 will 100% guaranteed be denied and they will start counting unlawful presence against you for your frivolous I-485 application (if they haven't already started counting it), which would make consular processing more difficult.