Confused , please help

[marta4085]

I need help as to how to proceed with an immigration matter and hope someone can help me. I recently became a US citizen. My sister is in the US on an expired B-2 tourist visa. I want to sponsor her for a sibling petition. These are my questions:

1) Can my sister remain in the US the whole time the I-130 is pending and adjust status here, or should she return to her home country and retrieve her visa there? I'm worried about here eligibility to adjust status after she is out of status for so long. I'm also worried that if she returns to her home country after being OOS for over a year, she'll face a ban on re-entering.

2) On the I-130 should I use her current US address, or her foreign address, were she to return there (I guess this depends on the first question)

3) Should I file I-485 simultaneously with the I-130?

Thanks so much for any help you can offer!

 

[TheRealCanadian]

Can my sister remain in the US the whole time the I-130 is pending and adjust status here

NO.

I'm also worried that if she returns to her home country after being OOS for over a year, she'll face a ban on re-entering.

The priority date wait for FB4 is so long that even the 10-year re-entry bar will expire before she can get an immigrant visa.

3) Should I file I-485 simultaneously with the I-130?

She cannot.

 

[austriacus]

Hi marta4085,

unfortunately, after the I-130 is approved your sister first has to wait for her priority date to become current until she can file the I-485. Priority dates are now current for people who filed sibling petitions 10 years ago, for one country the wait is even 22 years.

Your sister will not have legal status through this petition while she waits the many years for her priority date to become current.

You're correct if she's out of status for over a year she'll face a ban if she leaves the country, however, if you file a petition for her and she stays here without legal status she is subject to deportation.

My understanding is also that unlawful presence is only forgiven for immediate relatives (spouses and minor children of citizens).

Sorry, I don't see any good way that you can help your sister through your family relationship to stay here. She doesn't happen to be in love with a US citizen boyfriend by any chance?

[Edit: I replied before I saw The RealCanadian's post. Interesting observation on the 10-yr ban to expire before the PD becomes current!]

 

[marta4085]

Thanks so much to both of you for your help. It's good to have all the information, but it's too bad that there's such a long road ahead. Thanks again!

 

[GotPR?]

1) Sibling of US citizen is not an immediate relative so that all you can file at this moment is I-130. She has to wait for her PD to be current to file I-485 which will happen at least 10 years later. Therefore she is not allowed to stay in the US based on pending I-130.
Out of status will be a problem with I-485 eligibility in sibling case.

2) She is not supposed to be living in the US with B2.

3) No concurrent filing is allowed.

 

[Elvi_C]

Bad news

I need help as to how to proceed with an immigration matter and hope someone can help me. I recently became a US citizen. My sister is in the US on an expired B-2 tourist visa. I want to sponsor her for a sibling petition. These are my questions:

1) Can my sister remain in the US the whole time the I-130 is pending and adjust status here, or should she return to her home country and retrieve her visa there? I'm worried about here eligibility to adjust status after she is out of status for so long. I'm also worried that if she returns to her home country after being OOS for over a year, she'll face a ban on re-entering.

2) On the I-130 should I use her current US address, or her foreign address, were she to return there (I guess this depends on the first question)

3) Should I file I-485 simultaneously with the I-130?

Thanks so much for any help you can offer!

Sibling petitions (4th preference) currently being process are the ones filed before 22June97, this means that if you file now, your sister will have to wait aprox. 10 years before her priority date becomes current.
On the other hand, even when that happens she won't be able to file for AOS due to her overstaying of her visitor visa; only immediate relatives (parents,spouses and children) of a US citizen can do that despite of overstay or unauthorized work. If she leaves the country, that would trigger a 3 0r 10 year ban, depending on how long she overstayed and to answer your last question you can't file I130 and I485 concurrently since a visa number is not available for her at the moment (only immediate relatives of a USC do), she will have to wait until her priority date becomes current, but as I said before, her overstay is a problem.
I'm sorry for all the bad news , but I don't see the point of you petition your sister, unless she plans on returning to her home country, which would trigger the ban and wait the 10 years, at the same time waiting for her priority date to become current.

Please anyone else, correct me if I'm wrong.

 

[Elvi_C]

I took too long writing this post....5 replies before mine , sorry to see all of them are the same.

 

[marta4085]

There is an additional matter to my sister's situation. She has an 8-year old son staying in the US with her on the expired B-2 visa. My sister's husband has passed away, and my sister is struggling greatly to raise her son, with whom I am very close.

I would like to adopt my sister's son, as my sister is basically unable to provide for him anymore. If I filed the international adoption petition on his behalf, would he have to return to his home country as well while it's pending, or could he remain in the United States? I know about the home study and other requirements, I just don't know if he can do it a;; from here or what.

Thanks again for any help.