Overstaying and AoS

S

soneC

Registered Users (C)
Hello, everyone. I need some help in obtaining GC. Thank you for your reading and feedback.

I entered the county from Canada with F-1 student visa five years ago when I was 24. I obtained for H-1B visa for my job after graduation and two year later, applied for Green card based my employment (Perm EB2 China-born, PD Feb 2006 :(). The I-140 immigration visa application was approved. I filed for I-485 along with EAD application and got EAD later. My H-1B visa was expired in early 2008 and I did not apply for renewal. I continued my job with my EAD.

My parents filed I-130 immigration petition for me as soon as they became PRs in 2003 (PD Feb 2003, current visa bulletin shows cut off date at Nov 15 2002). They later upgraded my immigration case to the first category (unmarried son or daughter over 21 of US citizens) when they became US citizen.

I got laid off in Jan 2009. Since I was not able to find similar job in my field, I took two part-time jobs to make a living. I do not want to go back to Canada because I want to stay with my parent even though my staying is illegal.

Will my overstaying cause me problem if I choose to apply for family-based green card with I-485 AoS instead of Consular Processing in Canada? Or I have to go back to Canada to perform CP. I was told immediate family members were forgiven for overstaying, but I need crystal-clear verification. If AoS is trouble-free, how long will it take for me to get green card? I was told family-based I-485 with visa number available should take no more than six months. Is it true?
Thank you so much for your reply.

Cheers
SoneC
June 13, 2009
 
Last edited by a moderator:
If you are being sponsored by a parent, you have to be under 21 to be in the "immediate relative" category and be forgiven for being out of status.

But if your I-485 has not been denied yet, you are not out of status. You can continue to look for a "same or similar" job and if you find one you can use AC21 to continue your green card process until approval.
 
Thank you for your reply. So I am not in the "immediate relative" category becuase I am well over 21 when my parents filed immigration petition for me, right?

I am not sure that I will be able to find similar job soon. This is the reason for me take part-time jobs. I thought that I am out-of-status right away as soon as I got laid off. Do you think it is best for me to go back to Canada to do CP to get family-based GC? Thanks.
 
Last edited by a moderator:
If you only had H1B without the I-485, you would have been out of status as soon as you get laid off. But with the I-485, you are not out of status if it remains pending.

You need to check the status of your I-140 and I-485. As long as they remain alive, why not stay inside the US until your family based PD enables you to file another I-485 based on your parent's sponsorship?
 
Hello, thank you for your reply. I just checked my I-140 and I-485 case at uscis.gov. They remain well alive. Does it mean that I am not out-of-status yet even though I got laid off in Jan? If it is the case, waiting in US to file family-based I-485 is my best shot, right? Thanks.
 
Thank you for your reply. What if I can not find a similar job? Any hope for family-based I-485? Thanks.

Sincerely
 
TheRealCanadian said:
Your best shot is to find a "same or similar" job and get your GC via AC21.
Click to expand...
With a PD in 2006 for EB2 China, the employment-based green card route is likely to take at least another year or two. The best shot is to file the I-485 for family-based as soon as the FB PD becomes current, while also looking for a "same or similar" job for AC21.
 
Thank you again. Do you know how long it will usually take for USCIS to approve a family-based I-485 case once the PD is current? No more than six months? Thanks.
 
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