Hi, I was wondering what can I possibly do for this situation, in order to get approved. I came in using an F1 Visa, however due to some circumstances I became out of status. I was applied for and recieved an approval notice of action before I became out of status however, by my parents who are citizens. It should be noted I am also over 21 years old, in case it is relevant in this case. Any advice would be very helpful in resolving this, thank you.
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F1 Visa (over 21) became Out of Status, I485 thru Parents (citizens)
- Thread starter aibaby
- Start date
So their I-130 petition for you was approved? Was the petition filed before you turned 21?It's the I-797 Notice of Action, it says the above petition has been approved, and I attach/send it with the I485 when I file that.
Assuming you are unmarried, you are in the "F1" family preference category (unmarried over-21 child of US citizen) for immigration.
The I-130 petition being approved doesn't give you any benefits by itself. It does not allow you to stay in or travel to the US. Its only benefit is it is one part of what you need to apply to immigrate in the future. In order to actually apply to immigrate (either Adjustment of Status in the US or Consular Processing abroad), you need the petition to be approved AND a visa number be available for your petition priority date. If you look at the visa bulletin, there is currently about a 7.5 year wait for visa numbers in the F1 category for people born in most countries (much longer wait for people born in Mexico and the Philippines). Until the date on the visa bulletin passes your priority date (the date when the I-130 was filed), you cannot actually immigrate. In your case this is probably still a few years away.
One of the requirements for Adjustment of Status (the process for getting permanent residency in the US) for people not in the Immediate Relative category (spouse, under-21 child, or parent of US citizen) is that you must be in status at the time of filing for AOS. Since you are not in status, you will not be eligible for AOS by just staying here. You also cannot enter the US in the future on most types of nonimmigrant visa with intent to do AOS while here. So your only option is to do Consular Processing in your home country, a few years from now.
The I-130 petition being approved doesn't give you any benefits by itself. It does not allow you to stay in or travel to the US. Its only benefit is it is one part of what you need to apply to immigrate in the future. In order to actually apply to immigrate (either Adjustment of Status in the US or Consular Processing abroad), you need the petition to be approved AND a visa number be available for your petition priority date. If you look at the visa bulletin, there is currently about a 7.5 year wait for visa numbers in the F1 category for people born in most countries (much longer wait for people born in Mexico and the Philippines). Until the date on the visa bulletin passes your priority date (the date when the I-130 was filed), you cannot actually immigrate. In your case this is probably still a few years away.
One of the requirements for Adjustment of Status (the process for getting permanent residency in the US) for people not in the Immediate Relative category (spouse, under-21 child, or parent of US citizen) is that you must be in status at the time of filing for AOS. Since you are not in status, you will not be eligible for AOS by just staying here. You also cannot enter the US in the future on most types of nonimmigrant visa with intent to do AOS while here. So your only option is to do Consular Processing in your home country, a few years from now.
Well my date is coming up actually next month, April, which is why I wanted to ask for advice, step-by-step if possible on actions I can take. Do I need to be in my country for Consular Processing or can I file it from the US? How long does it usually take once filed? What are the chances, in your opinion, of getting my petition approved thru it? Also, what would happen if I send an I485 next month? Thanks again!
Your petition is already approved. You do not qualify for Adjustment of Status (I-485). You must go through Consular Processing in your home country when the time comes. NVC and the consulate will contact you with the steps. Usually the problem with people who are out of status in the US is that when leaving the US, they may trigger a ban for having accrued a certain amount of "unlawful presence" and leaving the US. However, you entered as a F-1 student, so you were admitted for "D/S" on your I-94, and you do not automatically start accruing "unlawful presence" on any particular date. So it should be okay for you to go back to your home country, get the immigrant visa, and come back to the US.
Really? I mentioned I-485 because that is what the I-797 says to send when the priority date comes. Is it because I became Out of Status that I do not qualify for it? How long does Consular Processing usually take, and based on your knowledge, what are my chances of getting approved for immigrant status? Also for Consular Processing, do I just go to the US Embassy in my home country and apply for it, or are there forms? I'm asking because almost everything I try to search online has a variation from my case, such as this one from the USCIS website:
"The National Visa Center, which is responsible for the collection of visa application fees and supporting documentation, will notify the petitioner and beneficiary when the visa petition is received and again when an immigrant visa number is about to become available....Once a visa is available or a beneficiary’s priority date is current (earlier than the cut-off date listed in the monthly Visa Bulletin),the consular office will schedule the applicant for an interview."
Since I haven't applied for Consular Processing even though my priority date is almost up, I assume I have to do some steps first before I get scheduled for an interview.
"The National Visa Center, which is responsible for the collection of visa application fees and supporting documentation, will notify the petitioner and beneficiary when the visa petition is received and again when an immigrant visa number is about to become available....Once a visa is available or a beneficiary’s priority date is current (earlier than the cut-off date listed in the monthly Visa Bulletin),the consular office will schedule the applicant for an interview."
Since I haven't applied for Consular Processing even though my priority date is almost up, I assume I have to do some steps first before I get scheduled for an interview.
Oh, so they will send me information on what my next step will be? I thought I had to take the initiative and send the proper application forms to them. Will they know that I'm out of status when they contact me? So I wait for them to contact me first, or do I inform them I intend to do Consular Processing first, then await instructions? Sorry for taking up so much of your time.
Okay and one last question (for now) if I might bother you again. Is there anyway at all I can stay in the US during this whole process?
Okay and one last question (for now) if I might bother you again. Is there anyway at all I can stay in the US during this whole process?
You need to first tell them to transfer it to NVC because you're doing consular processing, and then await instructions.Oh, so they will send me information on what my next step will be? I thought I had to take the initiative and send the proper application forms to them. Will they know that I'm out of status when they contact me? So I wait for them to contact me first, or do I inform them I intend to do Consular Processing first, then await instructions? Sorry for taking up so much of your time.
Okay and one last question (for now) if I might bother you again. Is there anyway at all I can stay in the US during this whole process?
You will obviously need to be out of the US for the consulate part at least. Nothing in this process allows you to stay in the US; you continue to remain at risk of deportation until you leave.
Yes, if you get married before you become a permanent resident (which happens when you enter the US with your immigrant visa), you move to the F3 category which has a few more years of wait.Oh, in addition, just wondering, would it have any affect on my status and what steps I have to take if I get married?