COMPLICATED CASE..... i-130

[natigan]

This is the case as far as I can tell......

Mom and Dad with 5 sons from Lithuania

Moms Brother (us citizen) applied in 1994 for all of them to come to US... took approximately 14yrs to be approved...they didnt come in the allotted time frame so it expired.

Whole Family traveled here on visiting visas in Oct 2010 under visa waiver program for Lithuania.


Get here and apply again while all sons are under 21. They are given Employment Authorization cards that say "serves as i-512 advance parole" during this process. Valid 03/23/2011 - 03/22/2012. They get to the last interview and get denied because they came on visiting visa. They are told that work authorization is revoked.

Approx June/July 2011 the whole family besides the oldest 2 sons ages 21 and 20 return to Lithuania to reapply.

Application approved quickly and they returned 11/2011. Rest of the family is now here with 10yr green cards.

The 2 oldest sons did not go back to Lithuania with family because of fear of getting "stuck".

oldest son turned 21 12/28/2010, other son turns 21 03/21/2012.

Two sons are now out of status and want to get legal..........any thoughts?.................besides marriage.....

 

[Jackolantern]

Moms Brother (us citizen) applied in 1994 for all of them to come to US... took approximately 14yrs to be approved...they didnt come in the allotted time frame so it expired.

Did they interview for the green card at the US consulate, and did they get approved with the stamp in their passport?

Whole Family traveled here on visiting visas in Oct 2010 under visa waiver program for Lithuania.

Those were not visiting visas, those were visa waivers! There is a big difference in treatment. Visa waiver users who try to immigrate are treated much more harshly than visa holders; the visa waiver users are almost always denied since the courts have been cracking down on them since a couple years ago. And outside of immediate relatives of USC, visa waiver users are always 100% denied if they try to immigrate or change status.

oldest son turned 21 12/28/2010, other son turns 21 03/21/2012.

Two sons are now out of status and want to get legal..........any thoughts?.................besides marriage.....

Not even marriage would allow them to stay in the US legally, because they entered with the visa waiver. They were already denied because they entered with the visa waiver. They will have to leave the US to become eligible for a green card again; the question is how long before they can come back. We need your answers to the following questions to figure out how long that is.

When exactly did they get denied? When the family members returned to Lithuania to reapply, was it based on the same old petition filed by your mother's brother? What is the current immigration status of both of their parents?

 

[natigan]

Both of the parents and 3 other siblings hold a visa valid for 10 yrs and right on it lists it as category F41 (I have physically seen the mothers Visa and greencard). I don't know yet but as much as I understand, they must have used the same old petition because how would it have otherwise only taken 4 months? Am i right in thinking this? Wouldn't they have received a new priority date if it wasn't the same petition? Is it possible for it to have been the same petition if it had expired?

The rest of the family left in approximately July of 2011 and returned with proper Visa/Greencards November 2011. This was approximately 2 months after being told in the US that what they had was being denied and they would have to leave. Somebody told them that if the 2 oldest sons went they would not be allowed back for a very long time so it scared them and they didnt go....... So I would say May of 2011 it was denied......

I have only visited with him once about this whole situation but we are getting together again so I can get some more specific facts....

From what it sounded like It is when they were in the US and went to the office and the officer looked at the stamp that was in the passports from entry that is when everything went down..... But at this point the already had the Employment Authorization Cards serving as I-512 Advance Parole (issued after arrival to US).... then it was revoked?

 

[ananga73]

F41 is the immigrant visa given to them for the green card. It appears they did enter on the visa waiver. That would mean they almost likely cannot adjust status here. From the dates you've provided, they have overstayed by over 6 months but under 1 year so they face a 3 year ban if they leave before accumulating more than 1 year of illegal presence.

Both of the parents and 3 other siblings hold a visa valid for 10 yrs and right on it lists it as category F41 (I have physically seen the mothers Visa and greencard). I don't know yet but as much as I understand, they must have used the same old petition because how would it have otherwise only taken 4 months? Am i right in thinking this? Wouldn't they have received a new priority date if it wasn't the same petition? Is it possible for it to have been the same petition if it had expired?

The rest of the family left in approximately July of 2011 and returned with proper Visa/Greencards November 2011. This was approximately 2 months after being told in the US that what they had was being denied and they would have to leave. Somebody told them that if the 2 oldest sons went they would not be allowed back for a very long time so it scared them and they didnt go....... So I would say May of 2011 it was denied......

I have only visited with him once about this whole situation but we are getting together again so I can get some more specific facts....

From what it sounded like It is when they were in the US and went to the office and the officer looked at the stamp that was in the passports from entry that is when everything went down..... But at this point the already had the Employment Authorization Cards serving as I-512 Advance Parole (issued after arrival to US).... then it was revoked?

 

[Jackolantern]

The rest of the family left in approximately July of 2011 and returned with proper Visa/Greencards November 2011. This was approximately 2 months after being told in the US that what they had was being denied and they would have to leave. Somebody told them that if the 2 oldest sons went they would not be allowed back for a very long time so it scared them and they didnt go....... So I would say May of 2011 it was denied......

They were misinformed. If they left the US along with the rest of the family, they would have been able to return along with the rest of the family who got approved and returned in November, unless there is something they did differently than the rest of the family that would disqualify them (like commit a crime or other immigration violations).

Because they overstayed in the US for over 6 months after the denial, they will be banned from the US for 3 years. That stretches to a 10-year ban if their overstay stretches to a year. Their overstay is the time they remained in the US after the denial, plus whatever amount of time they stayed between the expiration of the 90-day visa waiver and when their I-485 was filed (if the I-485 was filed after the 90-days ended). So they better leave before May 2012 (possibly sooner, depending on their total overstay so far) to avoid the 10-year ban.

But at this point the already had the Employment Authorization Cards serving as I-512 Advance Parole (issued after arrival to US).... then it was revoked?

Yes, once the I-485 is denied, the EAD and AP are revoked soon after.

 

[natigan]

"Not even marriage would allow them to stay in the US legally, because they entered with the visa waiver. They were already denied because they entered with the visa waiver. They will have to leave the US to become eligible for a green card again; the question is how long before they can come back. We need your answers to the following questions to figure out how long that is."


This is not what im reading here............
austinimmigrationlawyerblog.com/2011/04/visa-waiver-program-and-gainin

 

[Jackolantern]

This is not what im reading here............
austinimmigrationlawyerblog.com/2011/04/visa-waiver-program-and-gainin

OK, there isn't a 100% automatic ban everywhere on adjustment of status for visa waiver applicants who are married to a US citizen. Some of the circuit courts left some leeway for discretionary approvals, but the chances are very bad.

Read this http://www.visalawyerblog.com/2010/08/visa_waiver_overstay_and_marri.html

and http://www.oltarsh.com/blog/visa-waivers-permanent-residence.html

However, this case points out that 6 Circuits in the country including New York allow visa waiver holders to obtain permanent residence through their U.S. spouses even if they overstay, whereas the other 6 Circuits including New Jersey, Pennsylvania, Delaware, and the Virgin Islands, hold they may not.

Given their situation of already being denied because of the visa waiver and then overstaying after the denial, there is basically no hope of success for a discretionary approval. Reapplying for a green card within the US is likely to trigger removal proceedings, and because they entered with the visa waiver they will have no rights to challenge the deportation.

They royally screwed themselves by not leaving the US with the rest of their family. Their best option at this stage is to leave the US before accumulating a year of overstay, then figure out a way to return when the 3-year ban is up, whether through the same old original petition or a new petition filed by either of their parents.

 

[natigan]

so i found out some new details today..... he brought me a copy of the "second notice of approval" for the family reuniting application filed in 1994, which was dated 12/18/2010 when they were in the US, so it was actually not expired like i originally thought.... not sure if it makes a difference....???

 

[Jackolantern]

so i found out some new details today..... he brought me a copy of the "second notice of approval" for the family reuniting application filed in 1994, which was dated 12/18/2010 when they were in the US, so it was actually not expired like i originally thought.... not sure if it makes a difference....???

They might be able to immigrate based on that same petition after leaving the US and waiting out the 3-year ban.