Apply for Adjust Of Status (i-485) with expired B2 Visa

[NBear]

Hi all,

My adult (over 21) brother filed an i-130 through our mother, a legal permanent resident, that was approved and sent to the NVC.
The NVC recently sent him a letter saying that there was a visa available to him and he then applied for an adjustment of status (i-485).
After having his biometrics done, USCIS sent him "Request for initial evidence" letter requesting proof that he had lawful immigration status at the time of filing the i-485 or that he sends a Supplemental A form under section 245(i) of the INA.

He did enter the country legally under a B2 visitor visa many years ago but has since overstayed his visa for multiple years. He also does not qualify for the law under section 245(i).

Is he ineligible to obtain a green card while living in the U.S? From what I am reading it appears he is not.
Follow up questions: Will he have to leave the country to continue his application? If he does leave, and obtains a visa while in his home country, will he still be barred from coming back for 10 years?

Any answers will be truly appreciated. Thank you.

[newacct]

He is definitely not eligible for I-485. Someone not in the Immediate Relative category (spouse, under-21 unmarried child, or parent of US citizen) must be in status in order to be eligible for AOS. It was a terrible idea to file that. After the I-485 is denied, there's a chance they'll start removal proceedings against him.

Is he on DACA and has he had it since he was 18.5? Otherwise, he's kind of screwed.

He'll trigger a ban upon leaving the US. He can apply for a waiver with I-601 based on "extreme hardship" to his permanent resident parent if he can't be in the US. "Extreme hardship" is hard to meet. If he leaves and applies for the waiver and it gets denied, he will be stuck outside the US. To avoid the risk of leaving the US not knowing if he can come back quickly, he can apply for a provisional unlawful presence waiver with I-601A before he leaves the US. (However, if he gets put into removal proceedings, then this becomes moot.)

[NBear]

It was a terrible idea to file that. After the I-485 is denied, there's a chance they'll start removal proceedings against him.

I was afraid of this. How likely is it that they will start removal proceedings?

Is he on DACA and has he had it since he was 18.5? Otherwise, he's kind of screwed.

He came to this country months after turning 16 so he was unable to meet the eligibility criteria.

He'll trigger a ban upon leaving the US. He can apply for a waiver with I-601 based on "extreme hardship" to his permanent resident parent if he can't be in the US. "Extreme hardship" is hard to meet. If he leaves and applies for the waiver and it gets denied, he will be stuck outside the US. To avoid the risk of leaving the US not knowing if he can come back quickly, he can apply for a provisional unlawful presence waiver with I-601A before he leaves the US. (However, if he gets put into removal proceedings, then this becomes moot.)

I'm not familiar with this portion of the law. I don't think he can establish extreme hardship to our parent. If he leaves, and a ban is triggered, will he be able to continue pursuing his visa at home?
As far as I know, his i-130 has been approved, and his NVC priority date is current. If he gets the i-485 denied, is he entirely screwed or could be continue to apply for this visa?

Thank you for your response and your honesty.

[newacct]

If he is not put into removal proceedings and is not forced to leave the US, he should try filing I-601A to see if it would work. If it doesn't, he can keep staying and hope that another solution will appear in the future (e.g. if he marries a US citizen then he can adjust; or maybe some kind of immigration reform will be passed giving relief).

If he leaves the US, he will trigger a ban, and he will be trying to immigrate through Consular Processing instead of Adjustment of Status. He should try to apply for a waiver, and if he doesn't get it, he will have to wait until about 10 years after he left before he can get the visa.

[NBear]

Thank you all for the responses. I have one last question.

If he has the I-601A waiver approved, can he then apply for adjustment of status? Or, does the waiver allow him go back home for consular processing and come back without triggering a ban?

Or is the waiver simply buying him more time?

Thanks again.

[newacct]

If he has the I-601A waiver approved, can he then apply for adjustment of status? Or, does the waiver allow him go back home for consular processing and come back without triggering a ban?

No, he is not eligible for Adjustment of Status. When he leaves the US to do Consular Processing, he will trigger a ban. The waiver (whether a provisional waiver applied for before he left or a regular waiver applied for after he left) will allow him to get a visa despite the ban.

[NBear]

Thanks again for all the information. You've helped me clear this up a lot.

[yaboc]

im in similar situation. filing using approved I-130 with expired B2. couldn't do DACA since i was few months over 16 when i came here. parent LPR adjusted under 245i, which is the only thing that would allow me to adjust inside US, since i'm a grandfathered beneficiary of that petition. I-601A is the only way (return to home country) or marriage to USC in your brother's case