I130 for an unmarried son over 21 approved after he was removed from US - how to proceed?

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Venus21

Registered Users (C)
Hi everybody,
I have a dilemma and can't find an answer anywhere, so I'm hoping that someone here has had a similar experience, or maybe there are some experts that can point me in the right direction.
Here is the story in a nutshell:

My mother has just become a US citizen a few months ago. Prior to that (when she was still a PR) she filed a I-130 petition for my brother (currently 25 yo, unmarried) . He lives in our home country and is in school. However, when she filed (2007) he was in the US after entering the country in 2004 on a B-1 and overstaying his visa for 4 years. Unfortunately in 2008 he was arrested by border patrol, spent a couple of months in jail, had a proceeding in front of a judge and was given an option of voluntary departure (which he took). Since then my mom has gotten a letter from USCIS notifying her that the I-130 was approved and his priority date is July 2007. The petition mentions that based on the data that the USCIS has he would be applying for adjustment of status (again, at the time she filed he was in the US) but he is not eligible. The notice states - "we have sent the approved petition to the Dept of State National Visa Center. The NVC processes all approved immigrant visa which consular post is the appropriate consulate to compete visa processing. NVC will then forward the approved petition to that consulate". I'm not sure that that means exactly... Do we have to contact the NVC and give them my brothers address or other info? Is he even eligible for a visa at this point since he was here illegally and was in removal proceedings? How do we proceed???
Also, since my mom became a citizen in the meantime does she need to update that I-130 even though it was approved just to bump his category???
Thanks in advance, I really need some good advice and can't afford a lawyer...

Venus
 
If your mother just become a USC you can just call the NVC and let them know that you mother become USC and they will update the status on their system. The will sent the peition to the consulate at you home country for your brother for the interview when the priority date come. However since your brother use to overstay the visa for such a long time he will be bar from entering the US for 10. About this issue you might have to talk with the lawyer they might have some kind of waiver for that which I don't know. Can I ask why your brother got caught during his stay in the US?
 
PP, you ask as though getting "caught" was a problem to someone other than the brother. He decided to remain illegally; he was properly removed. His 10 year ban is a small penalty to pay for his illegal acts.

People who are granted the priviledge of entering a country as a guest, should be good guests and follow the laws of their host country which includes leaving.
 
Jackolantern said:
He has to wait until 2018. Maybe longer, if the judge imposed a longer ban.
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I'm not aware that the judge could impose a longer ban, since he was given Voluntary Departure. In such a circumstance, the only penalties that kick in are the 10-year bar for the overstay, since he wasn't actually deported.
 
TheRealCanadian said:
I'm not aware that the judge could impose a longer ban, since he was given Voluntary Departure. In such a circumstance, the only penalties that kick in are the 10-year bar for the overstay, since he wasn't actually deported.
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I put that "maybe" in there since we're not sure of what else might be in his immigration or criminal history that could give the judge authority and inclination to impose a longer or permanent ban, so we cannot say with certainty that the ban is only 10 years. He was arrested and detained for months, not merely served a notice to show up in removal proceedings, so there could be something other than a plain old overstay that put the border patrol on his tail.
 
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Thanks everyone for your responses. I am amazed how many people are willing to give advice so quickly!
Just to explain some of the uncertainties: the way he was "caught" was accidental - he was traveling on a train to see my parents in a different state for Christmas. Border patrol was on the train checking everyone's IDs and he didn't have a GC or anything so he was arrested. After that he was transferred to a detention facility in Texas (which was a shocker for us because we all live on the east coast and he was stopped in Pennsylvania).
In any event - for whatever reason the judge denied him bail even though he has NO criminal history whatsoever. Not even a speeding ticket, he's a good kid. But in Texas he was together with a lot of bad people (you know - drug or human traffickers) so it was surprising to us that they wouldn't let him out on bail. Both my mom and I were willing to vouch for him (both legal aliens at the time) but whatever, that's in the past.
I went to the final hearing and the judge even said - you seem like a good kid, go home, come back legally, looks like you have plenty of people here that care for you and will help you out. So that's the story.
So the ban is 10 yrs then? So even if his priority date comes before the 10 yrs he can't do anything correct? They would deny his petition?
And if he has to wait until the 10 yr ban expires how does he keep the petition "open" so the INS doesn't think that he abandoned it and is not going to try and get an immigrant visa??
 
Jackolantern said:
I put that "maybe" in there since we're not sure of what else might be in his immigration or criminal history that could give the judge authority and inclination to impose a longer or permanent ban, so we cannot say with certainty that the ban is only 10 years. He was arrested and detained for months, not merely served a notice to show up in removal proceedings, so there could be something other than a plain old overstay that put the border patrol on his tail.
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If that was the case, he would not have been given Voluntary Departure. The entire point of VD is that it allows the alien to escape any consequences brought about by a deportation.
 
Correct, correct and correct.

Venus21 said:
So the ban is 10 yrs then? So even if his priority date comes before the 10 yrs he can't do anything correct? They would deny his petition?
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Go through the motions until the consulate stage. Depending on the consulate, he will be advised on what course of action he needs to take.

Venus21 said:
And if he has to wait until the 10 yr ban expires how does he keep the petition "open" so the INS doesn't think that he abandoned it and is not going to try and get an immigrant visa??
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You say he is a good kid. He was in the US in violation of US law. That in itself is a criminal act negating your statement. Had he exited the country properly, he would not have these problems now. He was properly detained and made the right choice so as to avoid deportation and the resulting effects.

Since you state you cannot afford a private attorney, look for social service agencies that assist with immigration issues. Catholic Charities and a similar organization run by the Lutheran Church are two that are well regarded.
 
Well, it is not as easy as it seems. I know he overstayed, but the he really had nothing to go back to. Both my mom and I were here, my father who is still in the home country is a scumbag that abused all of us and we want nothing to do with him. My mom remarried an american citizen and by then my brother was too old to qualify for adoption. What do you do with yourself when you're 18yo and the only people that care about you are in the country that you are not allowed to live in??
 
Jackolantern said:
I put that "maybe" in there since we're not sure of what else might be in his immigration or criminal history that could give the judge authority and inclination to impose a longer or permanent ban, so we cannot say with certainty that the ban is only 10 years. He was arrested and detained for months, not merely served a notice to show up in removal proceedings, so there could be something other than a plain old overstay that put the border patrol on his tail.
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As TRC mentioned, voluntary departure is actually a form of relief from deportation - so he was not removed.
As far as being detained by immigration for months - that could happen, and often happens, because the court process is severely backlogged. You could be easily looking at 2 to 3 months between initial appearance and master hearing.
 
Venus21 said:
Well, it is not as easy as it seems. I know he overstayed, but the he really had nothing to go back to. Both my mom and I were here, my father who is still in the home country is a scumbag that abused all of us and we want nothing to do with him. My mom remarried an american citizen and by then my brother was too old to qualify for adoption. What do you do with yourself when you're 18yo and the only people that care about you are in the country that you are not allowed to live in??
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Easy or not easy - it's sad that you are making excuses for you brother. There are millions waiting in line to get legal residency in the USA, the legal way. They all have the same problem - that's why they want to come here.
 
Given a choice between breaking a country's immigration laws or leaving the country, which one in your opinion should an individual (legally an adult) pick?

Venus21 said:
What do you do with yourself when you're 18yo and the only people that care about you are in the country that you are not allowed to live in??
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Venus21 said:
Well, it is not as easy as it seems. I know he overstayed, but the he really had nothing to go back to. Both my mom and I were here, my father who is still in the home country is a scumbag that abused all of us and we want nothing to do with him. My mom remarried an american citizen and by then my brother was too old to qualify for adoption. What do you do with yourself when you're 18yo and the only people that care about you are in the country that you are not allowed to live in??
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You and your mother could have gone with him. It is obvious that living in the US was more important than your brother/son.

As a USC I do not accept excuses for not obeying US laws. The only reason they work is that they apply to everyone uniformly.
 
Venus21 said:
And if he has to wait until the 10 yr ban expires how does he keep the petition "open" so the INS doesn't think that he abandoned it and is not going to try and get an immigrant visa??
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I would suggest you filing for him. That itself will take about 10 years, by which time his 10 year ban would have finished, so he'll be able to immigrate based on your petition if it's not possible to keep your mother's petition open for the remainder of the 10 years.
 
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