One child approved, one not eligible huh?

[frando.]

Hello,

sorry if this has been covered before but i searched and could not find a concrete answer.

sorry if it is too much text.

I am a USC.

Mom and sisters came on a visitor visa and over stayed, Older sister filed for "deferred action" got approved (not married/under 21). the other is too young for deferred action.

I helped mom get her green card.

Mom now has filed a i130 for BOTH sisters and we received letters today.

Older sisters letter:

"The above petition (i-130) has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjustment of status.

The evidence indicates that he or she is not eligible to file an adjustment of status applications.

This determination is based on the information submitted with the petition and any relating files.

Because the person for whom you are petitioning is not eligible to adjust, we have sent the approved petition to the Department of State National Visa Center (NVC), NVC processes all approved immigrant visa which consular post is the appropriate consulate to complete visa processing. NVC will then forward the approved petition to that consulate. This completes all USCIS action on this petition. If you have any questions about visa issuance, please contact NVC directly. Please allow 90 days before contacting the National Visa center regarding your petition. The NVC will communicate with the person for whom you are petitioning concerning further immigrant visa processing steps. "

Younger sisters letter is different and does not say she is not eligible to apply for adjustment of status.

1) should we go ahead and file a i485 for both sisters anyway?
2) should it be faster/possible for ME (citizen) to petition for my sisters even though i filed for my mom?
3) is it possible sister got denied because she is under deferred action?


sorry for the long post, i would appreciate it if someone can point me in the right direction.

Thanks,

Francisco.

 

[Jackolantern]

That message on the I-130 approval which mentions being ineligible for AOS is often wrong and should not be taken as a final determination. It is based on a very quick look at the facts which existed when the I-130 was filed, not a thorough analysis of all the current evidence and laws and court precedents. You can't draw any conclusions from the fact that one approval had that message and the other didn't. They could both be ineligible or both eligible depending on all the facts.

AOS eligibility for overstayers who received deferred action is unclear. However, if your sisters are under 18 days and 180 days old they will be both be eligible for green cards if they interview for it at a consulate abroad instead of remaining in the US for AOS.

Note that eligibility for AOS is also dependent on the visa bulletin movements in the F2A category.

I assume your mother just recently got her green card and is nowhere close to getting US citizenship. If that assumption is wrong, and she is close to US citizenship eligibility, that opens up other options. And if she's married to a US citizen or somebody close to citizenship, that may also open up other possibilities.

 

[newacct]

Your sisters are not eligible for Adjustment of Status. One of the requirements of applying for Adjustment of Status is that the immigrant is currently in legal status, unless the person is in the Immediate Relative category. Immediate Relative category only includes the spouse, parent, or minor children of U.S. citizens. Your sisters are in a family preference category (specifically, F2A, spouse and minor children of permanent residents).

Besides Adjustment of Status, the other option is Consular Processing (i.e. go to the U.S. consulate in their home country). However, leaving the U.S. might trigger a ban if they have any unlawful presence after 18; it depends on how old they are and when exactly they got deferred action (as time on deferred action does not count as unlawful presence). You haven't given enough information in your post to determine whether this is a viable option.

Also, just because they have I-130 approved does not mean they can apply for a green card (Adjustment of Status or Consular Processing). They need to have I-130 approved PLUS the petition's priority date must be now current. F2A category currently has a wait.

If your mom becomes a U.S. citizen, and the sisters are still here and under 21, they would then be eligible for Adjustment of Status.

You applying for your sisters would almost certainly not be helpful. It would be in the F4 category (siblings of U.S. citizen), which has a 12+ year wait (longer for some countries), and it is a family preference category like they are in now. So there is no advantage, only much slower.