Green Card throuh Biological Parents or Wife?

S

Simon2011

Registered Users (C)
Hello Everyone, thanks for your help in advance!

I came into the US in August 1986 on a student Visa and under the legal guardianship of my aunt and uncle, with my aunt being a US citizen. In August 1988, my aunt (my dad's sister) filed for an immigrant petition for my Dad and my mom, sister and I were included on the petition.

In January of 1989 my aunt and uncle filed to adopt my sister and I from my parents and the court order was finalized in July of 1989, after my 16nth birthday and therefore no immigration benefits resulted. I continued on my student visa and after my Graduate degree in Computer Science, moved to an H-1. After being on an H-1B for about six years, when I lost my job in 2002 some lawyers advised me given that my whole family were US residents, there was no way I would get a new H-1B rentry visa if I left the country for a year. Based on their input and having a Social Security card without any restrictions from 1986 and a Drivers license, they suggested I could work till I got my status adjusted through my parents or through marriage.

Here is the million dollar question, should I pursue my Green Card through my wife or through my biological parents based on my aunt's petition for them in August 1988 which I aged out since the visa was not available till around December 2001.

As of Decemer 18, 2010, I just got married and my wife is an US citizen. However, I recently saw the Child Status Protection Act (CSPA) allows for adjustment of status for children who aged out waiting for visa's to be available for their parent's petition.

Which one do you think is better. I like CSPA because it looks like it can give me a Green Card immediately without the 90 day wait for a EAD/Work Authorization Document, and an interview in six months before obtaining a conditional green card but I like to hear the pros and cons given the complications of my case.
 
You have complex history.

That adoption may have effects that you do not realize. OR perhaps you know all TOO well. If your sister was under the statutory age prescribed in the law at that time, then she has no immigration relationship to the biological parents. The adoptive parents could have screwed up. IF the adoption was valid for immigration purposes and they followed through at the time, your sister would be a citizen already. Prior to 2/27/2001, adopted children of a USC required a separate application and approval with an Oath before reaching age 18. Just curious, did your sister get any immigration or citizenship status from the adopted parents?

IF your last entry into the U.S. was legal, then your USC spouse can file an I-130 along with your I-485 and I-765 (forget about the I-131 and do not depart without a greencard). You likely qualify for adjustment under INA 245(a). Unlawful presence (overstay) and unlawful employment are forgiven to an IR of a USC.


Background:

In 1981, the definition of child at INA 101(b) for immigration (rather than naturalization/citizenship) purposes was changed:

Subsec. (b)(1)(E). Pub. L. 97-116, Secs. 2(b), 18(a)(5)(C), substituted ``sixteen'' for ``fourteen'', and ``; or'' for the period at the end.
Subsec. (b)(1)(F). Pub. L. 97-116, Sec. 2(b), substituted ``sixteen'' for ``fourteen''.

In 1999, the amendments consisted of: [this is when a sibling under 18 was included with the younger adopted sibling]

Subsec. (b)(1)(E). Pub. L. 106-139, Sec. 1(a)(1), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (b)(1)(F). Pub. L. 106-139, Sec. 1(a)(2), designated existing provisions as cl. (i), substituted ``; or'' for period at end, and added cl. (ii).

In 2006: [relates to VAWA only]

Subsec. (b)(1)(E)(i). Pub. L. 109-162, Sec. 805(d), inserted before colon ``or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household''.
 
After being on an H-1B for about six years, when I lost my job in 2002 some lawyers advised me given that my whole family were US residents, there was no way I would get a new H-1B rentry visa if I left the country for a year.
Click to expand...
That's nonsense. H-1B allows immigrant intent.

However, I recently saw the Child Status Protection Act (CSPA) allows for adjustment of status for children who aged out waiting for visa's to be available for their parent's petition.
Click to expand...
There is a limited time window where you have to make use of that. Judging by your timelines, it appears that you are years past that window of opportunity.

All indications are that your wife's petition is your only option for a green card.
 
Last edited by a moderator:
GC through a spouse if there are no other "issues" is simple. Why would you not do this when other routes require attorney assistance and likely take longer?
 
BigJoe5 said:
You have complex history.

That adoption may have effects that you do not realize. OR perhaps you know all TOO well. If your sister was under the statutory age prescribed in the law at that time, then she has no immigration relationship to the biological parents. The adoptive parents could have screwed up. IF the adoption was valid for immigration purposes and they followed through at the time, your sister would be a citizen already. Prior to 2/27/2001, adopted children of a USC required a separate application and approval with an Oath before reaching age 18. Just curious, did your sister get any immigration or citizenship status from the adopted parents?

IF your last entry into the U.S. was legal, then your USC spouse can file an I-130 along with your I-485 and I-765 (forget about the I-131 and do not depart without a greencard). You likely qualify for adjustment under INA 245(a). Unlawful presence (overstay) and unlawful employment are forgiven to an IR of a USC.


Background:

In 1981, the definition of child at INA 101(b) for immigration (rather than naturalization/citizenship) purposes was changed:

Subsec. (b)(1)(E). Pub. L. 97-116, Secs. 2(b), 18(a)(5)(C), substituted ``sixteen'' for ``fourteen'', and ``; or'' for the period at the end.
Subsec. (b)(1)(F). Pub. L. 97-116, Sec. 2(b), substituted ``sixteen'' for ``fourteen''.

In 1999, the amendments consisted of: [this is when a sibling under 18 was included with the younger adopted sibling]

Subsec. (b)(1)(E). Pub. L. 106-139, Sec. 1(a)(1), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (b)(1)(F). Pub. L. 106-139, Sec. 1(a)(2), designated existing provisions as cl. (i), substituted ``; or'' for period at end, and added cl. (ii).

In 2006: [relates to VAWA only]

Subsec. (b)(1)(E)(i). Pub. L. 109-162, Sec. 805(d), inserted before colon ``or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household''.
Click to expand...

Thanks BigJoe5! No, my sister is older than me by a year so she was much past her sixteenth birthday to get any benefits from our adoption. Fortunately, she went on an H-1B and was able to get her Green Card since.

So if I hear you properly, you are recommending going the marriage route to adjust my status versus the CSPA route.

I see your point in loosing ties to my biological parents as a virtue of our adoption by my Dad's sister though it happened at the state level and there was no recognition at the Federal level because we both were over 16 when the final order of adoption was filed and the immigration officer at the local office told us there was no use in filing.

Just to cross my t's and dot my i's, are you saying no point in annuling the adoption in the best interest of the "child," and using 245(i), quoted by some lawyers helping me around 2002 in the event I was going to pursue my Green Card through my biological parents?
 
Jackolantern said:
That's nonsense. H-1B allows immigrant intent.


There is a limited time window where you have to make use of that. Judging by your timelines, it appears that you are years past that window of opportunity.

All indications are that your wife's petition is your only option for a green card.
Click to expand...

Thanks Jackolantern, I believe the dual intent of an H-1B and non-immigrant visas was something that changed recently.
 
Simon2011 said:
Thanks BigJoe5! No, my sister is older than me by a year so she was much past her sixteenth birthday to get any benefits from our adoption. Fortunately, she went on an H-1B and was able to get her Green Card since.

So if I hear you properly, you are recommending going the marriage route to adjust my status versus the CSPA route.

I see your point in loosing ties to my biological parents as a virtue of our adoption by my Dad's sister though it happened at the state level and there was no recognition at the Federal level because we both were over 16 when the final order of adoption was filed and the immigration officer at the local office told us there was no use in filing.

Just to cross my t's and dot my i's, are you saying no point in annuling the adoption in the best interest of the "child," and using 245(i), quoted by some lawyers helping me around 2002 in the event I was going to pursue my Green Card through my biological parents?
Click to expand...

Why would you want to use 245(i) it costs an extra thousand dollars? Have you consulted a competent immigration professional with ALL the specific information to determine if CSPA would have any application to you. And , dude, you were 16 over 20 years ago, it likely has no application to you. Stranger things havs happened but, hey, why bother?
 
BigJoe5 said:
Why would you want to use 245(i) it costs an extra thousand dollars? Have you consulted a competent immigration professional with ALL the specific information to determine if CSPA would have any application to you. And , dude, you were 16 over 20 years ago, it likely has no application to you. Stranger things havs happened but, hey, why bother?
Click to expand...

Thanks BigJoe5, I only like the CSPA option because if it applies, I would be able to get my GC and work authorization right away. Is there any way, I can go to a local USCIS office and ask them directly if it applies or not without jeopardizing my status?

Also, if going via my wife, can I file my I-130 and 485 jointly? I came into the US legally, but - Item 10 of the 485 instruction says that one is not authorized to apply for adjustment of status if “Your authorized stay expired before filing this application”
 
Simon2011 said:
Thanks BigJoe5, I only like the CSPA option because if it applies, I would be able to get my GC and work authorization right away.
Click to expand...
Even if you were eligible under the CSPA, you wouldn't get your GC and work auth. "right away". At this point you'd still have to file I-485 and a stack of related forms that will take a few months to process ... about the same amount of time as if your spouse filed for you.

Is there any way, I can go to a local USCIS office and ask them directly if it applies or not without jeopardizing my status?
Click to expand...
It's way too late for the CSPA. The CSPA window of opportunity expired for you in December 2002 (i.e. one year after the visa number became available).

Also, if going via my wife, can I file my I-130 and 485 jointly? I came into the US legally, but - Item 10 of the 485 instruction says that one is not authorized to apply for adjustment of status if “Your authorized stay expired before filing this application”
Click to expand...
That limitation doesn't apply to spouses of US citizens. You can file the I-130 and I-485 and related forms together (but don't file I-131 because it will be useless due to your overstay).
 
Last edited by a moderator:
Thanks for all the replies! The USA Visanow website lists the following documents be submitted in the initial filing in a marriage case. Please confirm and also in the case of travel, will I be able to travel after I get my conditional greencard given that the I-131, is not applicable to me.

Once the marriage has taken place, the couple files the following with USCIS:

1. Petition for Alien Relative (USCIS Form I-130)
2. Application to Register Permanent Residence (USCIS Form I-485)
3. Biographic Information (USCIS Form G-325A)
4. Affidavit of Support (USCIS Form I-864)
5. Permission for Work Authorization (Optional) (USCIS Form I-765)
6. Medical Examination Results (USCIS Form I-693)
7. Request for Travel Documents (Optional) (USCIS Form I-131)
8. The appropriate supporting documents
9. The USCIS filing fees ($1,010 to $1,365).
 
Simon2011 said:
Please confirm and also in the case of travel, will I be able to travel after I get my conditional greencard given that the I-131, is not applicable to me.
Click to expand...

I-131 will be useless for you. It probably will be approved if you apply for it, but then they'll refuse entry when you return to the US with it. But if you remain in the US until the conditional green card is approved, you'll be able to exit and reenter the US with the green card.

Apart from that, the forms you listed are correct for your situation, but it looks like the fee is wrong (USCIS increased the fees in November). When you go to the USCIS page for each form, you'll see the up to date fee. Note that there is no fee for the I-765 because it's built in to the I-485 fee (but people in other situations may have to pay the I-765 fee). Also note that two G-325A's are needed: one filed by you and another by your spouse.
 
Last edited by a moderator:
Forget about c.s.p.a., you don't want to go that route, the interpretations are not clear where this is concerned.
 
Thanks for all the replies!

Can someone clarify the validity of this lawyer's statement regarding going through the marriage route and having to leave the country to adjust my status? I think she is getting my case confused with sponsorship by someone who is only a legal resident versus US citizen as in the case of my wife. Thanks.


'Your attorneys adviced you right at the time you requested their imput. With a social security and a DL you could stay, work an adjust your status any time prior to the expiration of your visa or after it expired. However as of about 2 years ago, things have changed and now adjustment of status - with stay in the US, is granted to those who are still legal inmigrants. For those who:
- came on a legal visa but stayed on an expired visa; adjustment of status is granted but you are requested to leave the US and wait in your home country while the paper work is done. You are aware that if you leave the country a 5 year penalty will be activated. You wont be able to return to the US until 5 years have gone by.
- came illegal: a 10 year penalty will be actived upon leaving the US."
 
Simon2011 said:
Thanks for all the replies!

Can someone clarify the validity of this lawyer's statement regarding going through the marriage route and having to leave the country to adjust my status? I think she is getting my case confused with sponsorship by someone who is only a legal resident versus US citizen as in the case of my wife. Thanks.


'Your attorneys adviced you right at the time you requested their imput. With a social security and a DL you could stay, work an adjust your status any time prior to the expiration of your visa or after it expired. However as of about 2 years ago, things have changed and now adjustment of status - with stay in the US, is granted to those who are still legal inmigrants. For those who:
- came on a legal visa but stayed on an expired visa; adjustment of status is granted but you are requested to leave the US and wait in your home country while the paper work is done. You are aware that if you leave the country a 5 year penalty will be activated. You wont be able to return to the US until 5 years have gone by.
- came illegal: a 10 year penalty will be actived upon leaving the US."
Click to expand...

What they wrote does not apply to a US citizen's spouse who entered legally with a visa. A USC's spouse who entered with the visa waiver (and then overstayed) would have that kind of problem, so would the spouse of an LPR ... but not you.

Was it a paralegal who gave you the quoted irrelevant advice, or an actual lawyer?
 
Last edited by a moderator:
Her signature says, "Master of Law in the USA" and "Attorney at Law in Peru." She is a friend's friend, who was referred to us to be able review our work at a nominal cost as I was planning on filing by myself.

As far as filing update, I am completing my medical exams and wrapping up the paper work before submitting the i130, 485 and all other supporting documents and forms.
 
Simon2011 said:
Her signature says, "Master of Law in the USA" and "Attorney at Law in Peru." She is a friend's friend, who was referred to us to be able review our work at a nominal cost as I was planning on filing by myself.
Click to expand...

Peru? So she practices in Peru, after having studied law in the US? Doesn't seem like a properly qualified attorney whom you can expect reliable answers from. But if you're not just blindly handing over your case to her, and she's not charging you much, there should be no harm in having her just review your paperwork ... as long as you're taking whatever she says with a grain of salt and will do additional research if she says anything that seems dubious.
 
You must log in or register to reply here.
Top