Does a family based adjustment of status application make you legal even if overstayed?

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jack241

New Member
If someone with a child came to the U.S. on a B2 tourist visa and then wanted to immigrate, and a US citizen sibling applied for permanent residency on family basis to adjust status, but the tourist visa is overstayed while waiting for the green card (I guess ~15 years), does that make the parent and child an "illegal immigrant" or not?
 
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Yes, they will be considered illegal immigrants once they overstay the tourist visa.
The USC sibling's petition does not give them any legal status.
Also, because of overstay, while in the USA they will NOT be able to become "legal" based on the sibling's petition.
Depending on how long the overstay period is, a ban of 3 or 10 years might kick in once they leave USA.
 
So when an adjustment of status / AOS is filed, they would need to leave the country and return when the immigration visa is ready like in 15 years?

Are you sure there is no way to become a permanent resident if a visa is overstayed?

I've heard of people getting green cards while in the U.S. Was this possible in the 90's or early 00's perhaps?
 
They can get green cards only as a immediate relative of a US Citizen.
Immediate relatives are,

Spuouses, Children and Parents of a US Citizen.

Siblings are not considered Immediate relatives and are not eligible for the overstay forgiveness.
 
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Another way would be that the US Citizen sponsor Parents and when Parents acquire a GC And then become a USC they can sponsor their children, now that will classify them as a immediate relative.
It will be way less than waiting for 10 years.
 
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AOS mean adjusting status to "permanent resident" status while in the USA. But, not everyone qualifies to do AOS.
If one has overstayed a tourist visa, he/she cannot do AOS UNLESS that person is an immediate relative of a US Citizen. Siblings are NOT immediate relative.
Did the person you are talking about already overstayed the visa? If yes, for how long?
 
namecheckvictim said:
They can get green cards only as a immediate relative of a US Citizen or even LPR even with the overstay.
Immediate relatives are,

Spuouses, Children and Parents of a US Citizen.

Siblings are not considered Immediate relatives and are not eligible for the overstay forgiveness.
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This is incorrect.
 
Sorry I meant to say when the parents become a USC. Visanutz is right a LPR petitions are subject to numerical limits of the visas available, a Immediate relative of a USC is not subject to Visa limits.
BTW, there are waivers available for removal of the bars but are very hard to get.
 
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The visa is not overstayed yet. Maybe I wasn't clear sorry.

My sister and her son are visiting the US on a tourist visa, she liked this country and would want to immigrate here.

Her visa is a nonimmigrant visa. I was researching immigration procedures and found about AOS. I am a US citizen so I'm hoping I can sponsor her. Would she qualify for that or does she have to leave the country before the tourist visa expires and apply for an immigration visa and wait?

I'm kind of confused about AOS. If one can't stay in the country legally then what is the purpose of AOS?
 
After some more digging it seems it is possible just need to get valid visas for them while waiting for I-485. I guess a work visa for her and a student visa for him. Maybe best to get guidance from a lawyer.

Here's some info I found in case anyone needs: hooyou.com/familybased/citizen-siblings/brothers-sisters.html

So as long as there is a valid visa and documented, they won't be illegal. Please correct me if I'm wrong, thanks.
 
jack241 said:
I'm kind of confused about AOS. If one can't stay in the country legally then what is the purpose of AOS?
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One can stay in the country once the AOS is filed, but - one cannot file the AOS unless a visa is currently available. For the sibling of a US citizen, there are no visas immediately available - there is approximately a 12 year wait. Once the visa is available, if the beneficiary is legally within the US, then yes, they can file an AOS.

Hypothetically, you file an I-130 for your sister. She leaves the US prior to the expiration of her authorized stay. 10 years from now, she returns on an H-1B visa. Two years later, a visa becomes available, and then she can file AOS. If, on the other hand, she overstays under current law she will be unable to file an AOS _and_ leaving the US for a consular interview will result in a 10-year re-entry bar under current law.
 
jack241 said:
The visa is not overstayed yet. Maybe I wasn't clear sorry.

My sister and her son are visiting the US on a tourist visa, she liked this country and would want to immigrate here.

Her visa is a nonimmigrant visa. I was researching immigration procedures and found about AOS. I am a US citizen so I'm hoping I can sponsor her. Would she qualify for that or does she have to leave the country before the tourist visa expires and apply for an immigration visa and wait?

I'm kind of confused about AOS. If one can't stay in the country legally then what is the purpose of AOS?
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The purpose of AOS is just that - adjust status - but one must qualify for it. One cannot just decide to be an immigrant and file AOS - there has to be a basis for the AOS.

You can file a petition (I-130) for your sister (and her child) and they will be able to do AOS once the visa number is available if they are in the US at that time- however, their stay during this time must be LEGAL.

You are right, your sister could get a work visa and stay in the country legally. But work visas are generally valid for a certain period of time - and it's not easy to obtain one.

Whatever you (or they) do, don't break any immigration laws. Convince them to NOT overstay their visas. Immigration is a HOT topic at this moment - and people here are becoming more and more vocal against illegal immigration. These tensions will be reflected in the upcoming changes in immigration laws, which would mean TOUGHER immigration laws. Keep that in mind.
 
jack241 said:
After some more digging it seems it is possible just need to get valid visas for them while waiting for I-485. I guess a work visa for her and a student visa for him. Maybe best to get guidance from a lawyer.

Here's some info I found in case anyone needs: hooyou.com/familybased/citizen-siblings/brothers-sisters.html

So as long as there is a valid visa and documented, they won't be illegal. Please correct me if I'm wrong, thanks.
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Yes - that's true. But, do you think they can stay here for up to 15 years on work visas or being a student?
 
It would be faster if she has a career in which her employer would sponsor her for a GC. If she qualifies for an H1B visa, it is possible that an employer might do so.
 
I have a similar question that I think fits here. My fiancee and I are getting married on Friday..we are filling out all of the paperwork to adjust her status and get her a green card (i-130, i-485 etc.), but her F1 student visa expires on August 6th..17 days from now. We are worried it will take a week to get the marriage license, and another extended period before we receive a receipt back from the immigration office. What happens if we do not have an official receipt back before August 6th when her student visa ends? Is there anything we can do? We hope to have the paperwork overnighted to immigration by July 30-31, which should give us a week before the visa ends. Any info you can give would be helpful!
 
What do you mean by "student visa expires"? The visa expiration date has nothing to with anything once she is already in the US.

But regardless - you (and your fiancee) will be fine. Just file the papers asap.
 
This is all new to me..so I'm not sure exactly how it works. I just go with what she tells me. She has an f1 student visa, but her parents are not going to give her the money to attend full time this coming semester so she is not going to take classes, therefore ending her status as a student on august 6th from what I understand. I was just worried that if the marriage/paperwork process goes beyond august 6th..what will happen? She's an honest person and does not want to do anything illegal, so if she has to leave she will, but we just don't know what to do.
 
Like I said - no need to worry - both of you will be fine. Get married, file the papers and enjoy.
What you can do in the meantime - collect evidence of a bona-fide maraige. Right after you get married - if she is changing her last name, get her name changed everywhere - social secutiry/credit cards/driver license ... get her on the lease, car/health insurance etc. Also, start filling out the form NOW with whatever information you have.

If you want to be rest assured - have her register for classes anyway, I think most colleges will let you drop some/all classes before a certain date like 2 weeks or so - but totally not necessary.
 
VisaNutz said:
Like I said - no need to worry - both of you will be fine. Get married, file the papers and enjoy.
What you can do in the meantime - collect evidence of a bona-fide maraige. Right after you get married - if she is changing her last name, get her name changed everywhere - social secutiry/credit cards/driver license ... get her on the lease, car/health insurance etc. Also, start filling out the form NOW with whatever information you have.

If you want to be rest assured - have her register for classes anyway, I think most colleges will let you drop some/all classes before a certain date like 2 weeks or so - but totally not necessary.
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Thank you so much for the peace of mind. Not to get off topic from the thread but I have one last question since I have someone responding to me. We will be getting married on Friday so technically her name will not legally be mine (i think she has to legally change it? or is it automatically changed with the marriage certificate?), but we were curious what to put for her name on the forms? My last name, or her maiden name? Thanks again for the peace of mind.
 
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