Overstayed Visa, Applied for Green Card, Now applying for AOS. Have problems, what do I do?

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chiyere

Registered Users (C)
So my situation is complicated. I came into the U.S legally with a visa when I was a minor. A few years later my mom remarried and started working so she stayed here and I had to too. She got her green card a few years ago and after she got hers, she applied for mine.

My green card petition was approved last year, a few months after I turned 18, now I'm 19. I have about 8 months before a visa will become available for me. The immigration people know that I am currently in the U.S but they told me that if I do consular processing, that I have to leave the U.S to get my interview done and I know thats not an option. I want to adjust my status but I don't know what problems I am going to run into as far as having overstayed my visa because I know that they start counting after I turn 18.

What options do I have? What should I do?
 
If you leave the US you'll be banned for 10 years.

But due to your overstay, you can't apply for AOS based on your mother's petition while your mother is a noncitizen... they'll deny it and then probably deport you.

Did your mother marry a US citizen before you turned 18? If yes, her husband can petition for you, since you're his stepchild and you're still under 21. His petition for you, and your AOS can be filed together.

Or your mother could become a citizen soon based on 3 years of marriage to a USC, then you'll be able to file for AOS.
 
Since my step-dad can petition for me because he is a citizen, does that me that any direct relative (like aunt or uncle) who is a citizen could petition for me as well? And also if my step-dad does petition for me, does that mean that I have to begin the whole process over again and wait for the petition to be approved even though I already have a green card petition from my mom that has already been approved?
 
Stepparents can petition for their stepchildren if they married the parent when the child was under 18. An aunt or uncle or grandparent cannot petition for you*.

If the parent or stepparent is a US citizen, and the (step)child is under 21, the (step)child can file for AOS even if they overstayed their visa. And the AOS can be filed together with the I-130 petition. This is a restricted privilege; in most other situations, the AOS application cannot be filed at the same time as the petition, and overstaying would disqualify you from AOS (like it has disqualified you from AOS based on your noncitizen mother's petition).

With your stepdad's petition, the whole process has to be done again with a new petition and everything else. However, when filed by a US citizen for an under-21 (step)child, the entire process is usually completed in under 6 months. You could have gotten a green card at about the same time as your mom, if he had filed for you back then.


*except indirectly with you as a derivative beneficiary but that route takes years and is unavailable to you because of overstay and because your mother already has a GC so I won't get into those details
 
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You're welcome, and don't waste any more time! You can be deported if caught, so make the AOS a top priority in your life for the next few weeks. Once the AOS is properly filed and you have the I-485 receipt, you will be back in legal status until the green card is approved or denied. Talk to your stepfather and get working on the application ASAP.

Start gathering your passport (the one you entered the US with) and I-94, your birth certificate, your mother and stepfather's marriage certificate, your stepfather's birth certificate or US passport or naturalization certificate, and download the immigration forms and instructions. Some forms are to be filled out and signed by you, some by the petitioner.

The list of forms you need are listed in post 4 of this other thread: http://forums.immigration.com/showt...een-Card-Do-it-Yourself&p=1975217#post1975217 (they mention "USC spouse", but for a USC stepparent petitioner the forms are the same, you'll just fill out different info in the forms based on your relationship to the petitioner). Don't file I-131 because it will be useless as a result of your overstay.

You'll need two appointments with a designated civil surgeon for the I-693 medical, and you have to wait 3-10 days to get the results in the sealed envelope, so start working on finding a doctor and setting up the appointment now. See www.uscis.gov/civilsurgeons

If you have more questions, ask in the Family Based Green Cards section.
 
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