family base immigration?

[applyforcitizen]

Two questions regarding family base immigration.

1) Why are US citizen’s children subjected to priority date while US citizen’s parents are not? Are they both immediate relatives of US citizen?

2) Does 245i apply to US citizen’s parents overstay in US?

Thanks.

 

[applyforcitizen]

JoeF,

“Immediate relatives are not exempt from that”.

So, if 245i is not active, it will be a problem to apply GC for parents who overstay, say over 180 days.

But, in an earlier post, you stated that “The only factor is if they entered with inspection, i.e., with a valid visa. With that, not much of a problem.”

My understanding is that illegally overstaying visiting parents are not eligible for 485 unless 245i is alive.

I am confused at this point. please clarify, thanks.
--------------------------------------------------------------------------Quote:
Originally Posted by applyforcitizen
Case 1)
Parents have valid B-2 visas, during B-2 valid period, I-130/I-485 are filed (I assume I-130 AND I-485 can file together, correct me if I am wrong), in this case, it does not matter if B-2 expires or not, parents are in legal status, “pending AOS”.

[Yes. Filing the I-485 keeps them legal. ]
Quote:
Case 2)
Parents’s B-2 visas expire, within overstay 180 days, I-130/I-485 are filed, parents are still in legal status since they overstay less than 180 days.

[Yes. While they are illegal during the overstay, filing the I-485 makes them legal again. ]

Case 3)
Parents’s B-2 visas expire, AFTER overstay 180 days, I-130/I-485 are filed, parents are subjected to 3 years ban. If they don’t leave US, they will be fine. I-485 is most likely approved.

[As long as they are not leaving the US, this is the same as case 2. The ban only gets activated when a person leaves the US.
As a side note, I had a discussion with somebody about that: this rule actually means that it is better for somebody who overstayed a long time to stay in the US... because as soon as they leave, they are banned... ]
Quote:

In sum, as long as parents stay in US, no matter non-immigration visas valid or invalid, they are going to be OK as long as I-485 is approved, which is very likely.

[Basically, yes. The only factor is if they entered with inspection, i.e., with a valid visa. Without that, no I-485. With that, not much of a problem. Of course, if they overstay before the filing of the I-485, they could in principle be deported. In practice, that is rather rare, though.]

 

[nam2001]

INA 245(i) applies to people who entered the US without inspection, i.e., to people who sneaked over the border and to people who overstayed as outlined in INA 245(c).
And INA 245(c) explicitly excludes immediate relatives.
So, overstays of immediate relatives are forgiven. If the immediate relative entered without inspection, though, filing an I-485 is not possible unless INA 245(i) becomes active again.

HI
I have a question about overstayed spouse of a USC. Spouse who was on B1/B2 visa overstayed for more than 180 days is the overstay forgiven like mentioned in the post above by JoeF?
In this case after applying for I-130 and 485 can I-131 be also applied for traveling before the actual GC is issued?
Kindly help!!
thanx

 

[TheRealCanadian]

In this case after applying for I-130 and 485 can I-131 be also applied for traveling before the actual GC is issued?

While the overstay will not prevent the adjustment, the re-entry bars will still be in place until the alien becomes a permanent resident. Don't even bother applying for AP.

 

[Anahit]

Two questions regarding family base immigration.

1) Why are US citizen’s children subjected to priority date while US citizen’s parents are not? Are they both immediate relatives of US citizen?

2) Does 245i apply to US citizen’s parents overstay in US?

Thanks.

I think this answers to your first question:
Preference Categories:
The relative you wish to immigrate must obtain an immigrant visa number that is based on the preference category in which they fall.
People who want to become immigrants are classified into categories based on a preference system. The immediate relatives of U.S. citizens, which includes parents, spouses and unmarried children under the age of 21, do not have to wait for an immigrant visa number to become available once the visa petition filed for them is approved by the USCIS. An immigrant visa number will be immediately available for immediate relatives of U.S. citizens. The relatives in the remaining categories must wait for an immigrant visa number to become available according to the following preferences:
First Preference: Unmarried, adult sons and daughters of U.S. citizens. Adult means 21 years of age or older.
Second Preference: Spouses of lawful permanent residents, their unmarried children (under twenty-one), and the unmarried sons and daughters of lawful permanent residents.
Third Preference: Married sons and daughters of U.S. citizens.
Fourth Preference: Brothers and sisters of adult U.S. citizens.

The answer to your second question is in the instructions to the Form I-485:
Persons Who Are Ineligible.
Unless you are applying for creation of record based on continuous residence since before January 1, 1972, or adjustment of status under a category in which special rules apply (such as asylum adjustment, Cuban adjustment, special immigrant juvenile adjustment or special immigrant military personnel adjustment), you are not eligible for adjustment of status if any of the following apply to you:
you entered the U.S. in transit without a visa;
you entered the U.S. as a nonimmigrant crewman;
you were not admitted or paroled following inspection by an immigration officer;
your authorized stay expired before you filed this application; you were
employed in the U.S. prior to filing this application, without INS
authorization; or you otherwise failed to maintain your nonimmigrant
status, other than through no fault of your own or for technical reasons,
unless you are applying because you are an immediate relative of a U.S.
citizen (parent, spouse, widow, widower or unmarried child under 21
years old), a K-1 fiance(e) or K-2 fiance(e) dependent who married the
U.S. petitioner within 90 days of admission or an "H" or "I" or special immigrant (foreign medical graduates, international organization employees or their derivative family members);...