Sibling sponsored F4 in the US have to apply through consulate?

[praxx]

I was speaking to an attorney about adjustment of status from an I130 sibling petition which is now current this month. The attorney told me that the application cannot be processed in the US through adjustment of status because of living in "unlawful presence" due to expiration of a nonimmigrant Visa. I told the atty if I was covered under 245i if I would still have to leave the US to apply through the consulate and they told me that the 245i protection does not cover F4 sibling sponsorships but rather it's immediate relatives only who are covered! Is this true? I thought sibling sponsorship before May01 2001 guarantees 245i protection to people who have accrued "unlawful presence" ?

Also, besides the inconvenience of travel, is it better to apply for AOS via the 485 form rather than travelling back to your home country and applying through a consulate?

 

[citi786]

Your attorney is wrong, siblings are covered under 245i. Secondly 245i only covers petitions filed on or before April 30th, 2001.

 

[praxx]

Your attorney is wrong, siblings are covered under 245i. Secondly 245i only covers petitions filed on or before April 30th, 2001.

Yes I told my attorney that I heard 245i protected everyone...even if it was a work petition but I was told when it comes to "unlawful presence" only immediate relatives benefit from 245i. I was shocked to hear that and I asked once again that wasn't the whole purpose of 245i to "forgive" the unlawful presence but once again I was told sibling sponsored beneficiaries are not forgiven unlawful presence. This isn't really a retained attorney it's just someone I was speaking to on the phone to setup an initial consultation with. It's quite shocking to me that someone can make such a critical mistake on such an important topic.

And I know about April 30th or before. If the petition was postmarked in April and I can prove it then I'd still be protected under 245i.

But there's still the tiny chance this attorney was correct and there is some little known loophole which does say only immidiate relatives are covered but I myself am 99% sure it's not true but wanted to make a thread just in case...

 

[TheRealCanadian]

Yes I told my attorney that I heard 245i protected everyone...even if it was a work petition but I was told when it comes to "unlawful presence" only immediate relatives benefit from 245i

Immediate relatives, unless they entered without inspection, don't require 245i relief. Their relief is in a separate section of the INA.

it's just someone I was speaking to on the phone to setup an initial consultation with. It's quite shocking to me that someone can make such a critical mistake on such an important topic.

You have now discovered that this so-called attorney is not worth spending money on.

 

[namecheckvictim]

Q. If the petition was postmarked in April and I can prove it then I'd still be protected under 245i.

A. Don't know about the postmark in April, please confirm. I believe its the PD on your NOA.

 

[citi786]

Q. If the petition was postmarked in April and I can prove it then I'd still be protected under 245i.

A. Don't know about the postmark in April, please confirm. I believe its the PD on your NOA.

Based on PD only. Until and unless you can prove that USCIS did not do their due diligence. If you can prove it, you will have to sue USCIS.

 

[praxx]

Q. If the petition was postmarked in April and I can prove it then I'd still be protected under 245i.

A. Don't know about the postmark in April, please confirm. I believe its the PD on your NOA.

Actually a person might not even have to prove it. According to AILA, CIS uses the postmark for the purpose of 245i benefits. Furthermore it appears that the CIS field manual since 2001 has instructed them to allow a 3 day grace period in cases where a packet was recieved after the April 30th cutoff date with a smudged or mutilated postmark. For example if someone's packet was received on April 3rd 2001 with a smudged postmark date then the priority date would be April 3rd but the postmark date for 245i benefit purposes would be rolled back 3 days to become May30th 2001. If a petitioner mailed the application out on April 30th and it was recieved on May10 2001 by CIS with a smudged or illegible postmark then their PD would be May10 but the postmark date for 245i benefit purposes would be MAY07 2001. In other words in the last case the burden of proof would be on the petitioner and beneficiary to provide documentary evidence of mailing the package prior to May01 or they would be out of luck.

So anyway, it appears that those with a PD of MAY01 2001 through MAY03 2001 who actually did drop the packet off in the mail on or before April 30th would be covered under 245i even if their postmarks were smudged or mutilated. AILA was in fact petitioning to change this 3 day rule from 3 days to 15 days due to the immense amount of people whose PDs fell between May 4th and May 15th and who presumably had smudged or otherwise unverifiable postmarks. Full article: http://www.aila.org/content/default.aspx?bc=1016|6715|8921|10551|2253

The Postmark Rule Is a Much-Welcomed Acceptance of the Realities Involved.

INS is to be heartily congratulated for its use of the postmarked date as the date of filing for 245(i) purposes. At the last section 245(i) deadline, considerable confusion was created in the field by conflicting information and understandings of what constituted the date filed. A postmark standard resolves most of these problems.

We are concerned, however, about certain aspects of the guidance letter that followed publication of the regulation with respect to the meaning of "postmarked." AILA applauds INS for considering in advance the problem of omitted or illegible postmarks. However, the solution put forth is not workable. The Service Centers are often referred to as "remote adjudication centers." For some of the Service Centers, that description has an additional truth: their locations are well removed from major postal hubs. As a result, it is not unusual for mail-particularly the large-sized envelopes in which these filings are usually contained-to take one to two weeks to reach some Service Centers by regular mail. Members of the public, lulled into a false sense of security by the language of the regulation, may well have mailed a petition on April 30, but it will not have reached the Service Center until mid-May. Because of the three-day standard put forth in the guidance letter, those filings would not be considered to have been sent by April 30 even if they actually were mailed by that date. Thus, AILA urges that the 3 days be changed to 15 days where the application was sent by regular mail.

This is an old article but I'm presuming the policy has either improved or at least stayed the same.

 

[praxx]

Immediate relatives, unless they entered without inspection, don't require 245i relief. Their relief is in a separate section of the INA.

Yes I'm aware that legally inspected entrants can have their employment/business related "unlawful presence" forgiven by marriage to a USC so they can avoid the 10 year bar. The attorney probably got confused by merging this law with 245i in their mind without performing due dilligence in researching the issue properly. Quite shocking tbh when I think of people that have potentially been misinformed.

You have now discovered that this so-called attorney is not worth spending money on.

Yes I experienced a mixed feeling of shock and disappointment when I realized that and especially so when I was also told in the next breath that I would have to leave the US and apply for LPR from my consulate rather than file an AOS from the US. I'm not sure I want to retain an attorney who gave me such sloppy advice.

I would dare speculate that this is why most inexperienced/mediocre/incompetent attorneys learn to never giving legal advice over the phone and recommend you come in for a paid consultation(sales pitch) because they know that if they goof up within minutes of talking to a potential client on the phone then the client will just run off.