Should I File I-130 for my son? Entered US with B2 visa

M

mauricio992

New Member
Hello

For family reasons and my health, my son will overstay his allowed visit. Should I file I-130 for him now? I understand this will be a +4 years process to get the I-130 it approved and get a visa allocated. However, at that time, he will be inadmissible to adjust status (due to overstaying) and trigger a 10 year ban.
Is there a way that my son can adjust status without living the US?
it seems the only way is to file I-604A and get the visa back to his origin country. Is that my only choice?

Here are all the facts:
  • Beneficiary:
    • unmarried (divorced) son
    • +21 years old.
    • Entered US with B-2 visa.
    • I-94 card will expire on 11/17/2018
  • Petitioner (option 1):
    • Beneficiary’s father (2B category)
    • LPR
    • N-400 was filled 2 months ago.
  • Petitioner (option 2):
    • Beneficiary’s sibling (F4 Category)
    • US Citizen
Thank you in advance.
 
You are going down an avenue that will get your son banned from the US for 10 years. Only immediate relatives (spouses, minor children, parents) of US citizens are forgiven overstays and are able to file adjustment applications with the i130 as there is no wait. For both options, LPR and sibling, he has to wait for a priority date to be current and in neither case does he fit the immigration definition of immediate relative. Your son will be illegally in the US and at risk of deportation from the day he has overstayed his B2. He will not be able to adjust status because he will not have a legal status to adjust from, and will have to leave the US to apply for his visa. But the overstay ban is triggered from the day he leaves the US, which in your case will be longer than a year therefore a 10-year ban. You have no realistic choice other than sending him home before his B expires and definitely at least before the 180-day period that will trigger the first level (3-year) ban.
 
As Susie noted above, the son should depart the US on or before i94 expiration.
You can petition him any time, even now as soon as you can get the paperwork prepared. He awaits the immigrant visa process in his country and interviews there. If/when you become a US citizen yourself, you can upgrade the son's petition to reduce his wait time for the interview.
 
I’m sorry you have health issues which you feel necessitates your son’s continuous stay, albeit illegally in the US.

The truth is no one here can nor will provide you guidance on you and your son’s plans of intentionally breaking US immigration laws. You shouldn’t be planning on having your son remain beyond his authorized stay with the hope of getting the illegal stay forgiven. That is a fraudulent attempt at circumventing the US immigration system, you son needs to leave on or before the expiration of his I-94.
 
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