GC approved, Son still on H4? Ginnu comments?

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badrinathn

Registered Users (C)
Hi Ginnu,

My wife and I got our GC approved today (RD 9/2003), but I had not yet applied for my 1 year old son's I-485. Now my questions are what are my options.

I have asked my lawyer to file I485 for my son, but will that be rejected?
If so what will his status?
Or will USCIS just accept the application and adjudicate in Oct? Is there a 180 day rule that I can apply for his I485? Is 245(i) applicable here for him?

Thank you, can you please help my understand my situation.

Badrinath
 
badrinathn said:
I have asked my lawyer to file I485 for my son, but will that be rejected?
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If you're an EB case, it will be rejected.

If so what will his status?
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He is out of status.

Or will USCIS just accept the application and adjudicate in Oct?
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No. It doesn't work that way.

Is there a 180 day rule that I can apply for his I485?
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If you're an EB case, then based on 245k he has 180 days to file his I-485. Hopefully the dates will be current by then. If they're not going to be current on 10/1, then you need to seriously consider FTJ. If he's under 18, then no illegal presence should accumulate, and he can stay in the US (albeit illegally) without penalty and get his IV at a consulate abroad.

Please note that what I am suggesting conveys some possible risk, and I would STRONGLY recommend you talk to a competent attorney (or better, two) before you pursue it.

Is 245(i) applicable here for him?
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Is your PD before May 1st 2001, and was he physically present in the US on 12/22/2000? If not, then no.
 
TheRealCanadian said:
If you're an EB case, then based on 245k he has 180 days to file his I-485. Hopefully the dates will be current by then. If they're not going to be current on 10/1, then you need to seriously consider FTJ. If he's under 18, then no illegal presence should accumulate, and he can stay in the US (albeit illegally) without penalty and get his IV at a consulate abroad.
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Thank you RealCanadian,

What is FTJ and what is IV - is that consular processing? BTW, my son is 1 year old.

Thank you.
 
Thanks RealCanadian,
It was under certain situation we had our baby in India.

BTW, Part 2 b(Application type) on I-485 reads
b) my spouse or parent applied for adjustment of status or was granted lawful permanent residence in an immigrat visa category that allows status or spouses and children.

Since this the I-485 form, can I still file for his I-485 come oct 1st if the dates are current and is this checkbox going to help me
Part 2 - b (I am apply for an adjustment to permanent resident status because).
 
badrinathn said:
It was under certain situation we had our baby in India.
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Well, this is an excellent reason why you should have your children in the US.

Since this the I-485 form, can I still file for his I-485 come oct 1st if the dates are current and is this check box going to help me
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That's correct. That's the basis under which your son will be applying. Remember, if 180 days pass and your PD doesn't become current again, you'll need to file an I-824 for him to get his immigrant visa at a consular interview.
 
TheRealCanadian said:
If he's under 18, then no illegal presence should accumulate, and he can stay in the US (albeit illegally) without penalty and get his IV at a consulate abroad.

.
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Does this mean that if he is less that 18 years old no - FTJ is needed and he can go to consulate abroad and get the IV.

Thank you for all your responses.

Badrinath
 
badrinathn said:
Does this mean that if he is less that 18 years old no - FTJ is needed and he can go to consulate abroad and get the IV.
Click to expand...

FTJ is how he gets his immigrant visa. Since he's under 18 there are practically speaking no penalties for staying here illegally until he gets it.
 
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