Questions about my parents (on their GC) filing for my teenage brother's GC

J

jmoy7

Registered Users (C)
Background:
- I am on my GC and will hopefully get my US Citizenship by end of 2009
- My parents and teenage brother will be coming to the US from the Philippines (on tourist visas) in January 2010.
- I will then file the petition for my parents' GC (via Adjustment of Status). Hopefully, they will get their GCs within 6 months.
- When my parents get their GCs, they will file the petition for my brother's GC

Questions:
- Can my brother travel in and out of the US (using his tourist visa) while he has a GC petition pending? I'm thinking that the answer is NO but wanted to be sure.
- Can my parents file for Advance Parole for my brother? How long does it take to get the AP? If an AP is granted, will my brother be able to travel in and out of the US without any problems (processing time for his category is about 6 years)
- If travelling in and out of the US is not an option, can he just stay here (be "out of status") without jeopardizing his GC petition? Can he go to school? (will high schools and colleges accept him based on his pending GC petition even though he is "out of status")?

Thank you!
 
1) Most probably NO
2) NO
3) Depends on his age. If he'll become 21 BEFORE the parents become USC (which will be ~5+ years after they get GC) he'll NOT be able to adjust status and will be banned from US for 10 years. If he'll be under 21 years old he may still adjust as immediate relatives (they are forgiven for being here illegally as long as he enters with the visa).
 
Since you have openly declared their intent to immigrate, why are you not considering going the CP route?

jmoy7 said:
- I am on my GC and will hopefully get my US Citizenship by end of 2009
- My parents and teenage brother will be coming to the US from the Philippines (on tourist visas) in January 2010.
- I will then file the petition for my parents' GC (via Adjustment of Status). Hopefully, they will get their GCs within 6 months.
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jmoy7 said:
- My parents and teenage brother will be coming to the US from the Philippines (on tourist visas) in January 2010.
- I will then file the petition for my parents' GC (via Adjustment of Status). Hopefully, they will get their GCs within 6 months.
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That is preconceived immigrant intent. If the consulate or port of entry knows their intention to use a tourist visa to immigrate, their visa will be denied or they will be refused entry.
- When my parents get their GCs, they will file the petition for my brother's GC
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He will still be out of status for 5 years while they wait to become citizens.
- Can my brother travel in and out of the US (using his tourist visa) while he has a GC petition pending? I'm thinking that the answer is NO but wanted to be sure.
- Can my parents file for Advance Parole for my brother?
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No. While your parents can file an I-130 for him as soon as they get their GC, their lack of US citizenship means he will not be eligible for I-485 or Advance Parole or employment authorization.

In addition, if he turns 21 before his parents become citizens, his years of being out of status will make him ineligible for a green card unless he leaves the US for 10 years.
 
My parents will file for my brother's GC under this category:

LIMITED FAMILY-BASED - Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (over age 20) of lawful permanent residents.

Family Second Preference is divided into 2A and 2B:
2A. Spouses and Children: waiting time: approx 5 years
2B. Unmarried Sons and Daughters (21 years of age or older): waiting time - approx 11 years

We are considering both CP and AOS for my parents GC petition.

My brother is 15 years old so the sooner my parents can get their GCs, the sooner they can sponsor my brother. Thus we are looking into the AOS option since that will give us about a 6-month lead time over CP. We're hoping that his GC will be approved before he turns 21 so that he can still be under the Family Preference 2A category.

We're trying to see if he can stay in the US legally during the 5+ year waiting period.
 
He will not be able to AOS under the family 2A category if he is out of status. To qualify for AOS after being out of status for such a long time, he would have to be under 21 with his sponsoring parent being a US citizen.
 
Thanks for the info. We're trying to look for a way for him to keep his status during the waiting period (e.g. going the F-1 route).
 
jmoy7 said:
Thanks for the info. We're trying to look for a way for him to keep his status during the waiting period (e.g. going the F-1 route).
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F-1 is very unlikely if his parents are permanent residents. He also will have trouble getting an F-1 if he overstays a tourist visa.
 
Yes, I understand that F-1 is unlikely with our parents as permanent residents so the option is to apply for an F-1 before our parents get their GCs. Or to convert to F-1 before his tourist visa I-94 ends.
 
jmoy7 said:
Yes, I understand that F-1 is unlikely with our parents as permanent residents so the option is to apply for an F-1 before our parents get their GCs. Or to convert to F-1 before his tourist visa I-94 ends.
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Even if he gets an F-1 soon, it will not be valid past high school. He'll need another F-1 to continue studying legally in college, which he probably won't get with his parents as permanent residents.
 
Such is our dilemma - the 5-year processing time is cutting it so close to his 21st birthday. Best case scenario - our parents get their GCs in June 2010, their US citizenship in June 2015. He turns 21 in December 2015.
 
jmoy7 said:
Such is our dilemma - the 5-year processing time is cutting it so close to his 21st birthday. Best case scenario - our parents get their GCs in June 2010, their US citizenship in June 2015. He turns 21 in December 2015.
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I think the illegal route is VERY risky. What if the citizen procedure or green card procedure will be delayed... Again, if he'll be illegal more then certain number of days - ban will kick in.
 
Sorry - my brother is 14 NOW, turning 15 in December 2009 (by the time my parents file for his GC petition, he will be 15).

We don't want to go through the illegal route, but wanted to check what his options are if he's "out of status" based on other people we know who were "out of status" while their cases were pending (i.e. they could legally stay in the country but could not travel in/out).
 
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jmoy7 said:
We don't want to go through the illegal route, but wanted to check what his options are if he's "out of status" based on other people we know who were "out of status" while their cases were pending (i.e. they could legally stay in the country but could not travel in/out).
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They must have been in the immediate relative category (the spouse, parent, or under-21 child of a US citizen). Immediate relatives of US citizens who overstay their visas are allowed to file for AOS and get approved for a green card, despite the overstay. But your brother has to wait many years before he gets into that category, because getting there involves your parents becoming citizens. While he waits to get there, he would have no legal status and if caught he would be deported (and banned from the US for 3-10 years or even life, if he's 18.5 or older when caught). He wouldn't be able to obtain a driver's license or work legally. And even using an airport for domestic travel could be troublesome; some airports have immigration agents roaming around asking people about their immigration status.

Rather than running on the wrong side of the law and fretting about deportation and the GC and naturalization clock, there is a safer, legal option: leave your brother outside the US when your parents get their GCs. Have them file for your brother right away, while he lives with relatives in the Philippines. Or your parents can get a reentry permit and go back for a while to continue living with him there until he's 17 or 18. Then they can come back to the US while he works in a job or attends university in the Philippines.

The Philippines is at June 2005 in F2A, which is just a little more than 4 years. So if they get their GCs in 2010 and file for your brother immediately, he should get his GC in 2014 or early 2015, without having to live in the shadows as an illegal alien while risking getting deported and banned from the US, or worrying about whether your parents can get their citizenship fast enough.
 
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Thanks Jackolantern. You are right - the people we know who overstayed and eventually did AOS were all in the immediate relative category.

My brother currently holds a tourist visa. If he stays behind in the Philippines and my parents file for his I-130, does this mean that he cannot travel to the US (during the entire 5-year waiting period) because he has a pending I-130 petition (even though he has a valid tourist visa)?
 
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It's very unlikely they'll let him use that tourist visa with his parents having GCs and filing I-130 for him. But that situation does not bring an absolute ban, so he can try and use it and see what happens. Whatever happens, if at the port of entry he is asked about his parents or GC petition he should not lie, as that would lead to a long-term or permanent ban from the US if USCIS finds out about the lie (even if they discover the lie years later).
 
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