Concerns I have before filing my I-485

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socalfish

New Member
Hi all, I hope any one of you gurus on this site can provide some insight to my concerns here.

My priority date is finally current, I have a petition under my mom who filed the I-130 in April 30, 2001. I entered the country with a valid tourist visa in Aug 2000 but that visa expired on Feb 2001. My mom's petition is under the F2B, single son over the age of 21 of a Permanent Resident (Philippines). My priority date is May 25, 2001. I received my I-797 Notice of Action in 2005 informing me that my application is approved but I had to wait for my priority date to become current. Its been a long 11 year wait!

So here are my concerns before I file the I-485:

1. My mom was naturalized and became a US Citizen in Dec 2005. Since my application was submitted when she was a Permanent Resident, does this nullify my application? Does my application become an F1 category now? There was a case where I heard that one can opt out and remain in the same category. Am I able to opt out and maintain my same category and priority date?

2. Prior to filing that application in April of 2001, my tourist visa has expired on Feb 2001. So I basically overstayed. This is the second time I did this. The first time was back in 1984, I was 13, came here with my family, went to school, graduated college and left to live and work in Chile in 1995. Will the USCIS deny my application because I overstayed twice?

Any advice will be helpful and appreciated. Thanks!
 
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The first overstay is what can be a problem. How long after your 18th birthday did you overstay? That is key because period of overstay as a minor does not accumulate illegal presence.

If you overstayed more than 180 days, you got major problems since you would have had an automatic bar from entry for a duration of 3yrs or 10yrs and received the new visa[I assume you got a new visa?] in error and/or admitted at the port of entry in error.

Even if you used the same visa, it was illegal because the visa was automatically voided due to your overstay. Also how long after the overstay did you return to the country. Provide detailed information on your visas and dates of entry in order to get an accurate answer.

For your second visa [I assume you got a new visa?], did you lie on your application forms when asked if you had previously overstayed?

socalfish said:
2. Prior to filing that application in April of 2001, my tourist visa has expired on Feb 2001. So I basically overstayed. This is the second time I did this. The first time was back in 1984, I was 13, came here with my family, went to school, graduated college and left to live and work in Chile in 1995. Will the USCIS deny my application because I overstayed twice?

Any advice will be helpful and appreciated. Thanks!
Click to expand...
 
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ananga73 said:
If you overstayed more than 180 days, you got major problems since you would have had an automatic bar from entry for a duration of 3yrs or 10yrs and received the new visa[I assume you got a new visa?] in error and/or admitted at the port of entry in error.
Click to expand...

The departure was in 1995, which was before the 1996 law that imposed the 3 year/10 year bans.
 
socalfish said:
Hi all, I hope any one of you gurus on this sight can provide some insight to my concerns here.

My priority date is finally current, I have a petition under my mom who filed the I-130 in April 30, 2001. I entered the country with a valid tourist visa in Aug 2000 but that visa expired on Feb 2001. My mom's petition is under the F2B, single son over the age of 21 of a Permanent Resident (Philippines). My priority date is May 25, 2001.
Click to expand...
If she filed it in April, how come the priority date is May 25? The cutoff for 245(i) was April 30, 2001 -- if you don't satisfy that, you will be unable to adjust status.

1. My mom was naturalized and became a US Citizen in Dec 2005. Since my application was submitted when she was a Permanent Resident, does this nullify my application? Does my application become an F1 category now? There was a case where I heard that one can opt out and remain in the same category. Am I able to opt out and maintain my same category and priority date?
Click to expand...

There is an option to stay in F2B when the petitioner naturalizes. See http://www.ilw.com/articles/2006,0725-wheeler.shtm

You have a complicated case, and you should seek the advice of a lawyer.
 
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