I-485 Eligibility

[DanielP]

Hi there;

I am permanent resident of the United States and my son who is born in Canada (now 5 years old) is on a B-2 visa for the past 2-years.

I have filed I-130 petition on his behalf in June 2015 (F2A). After 2-years, his visa eligibility became current in July 2017. I filed for his I-485 in August 2017.

Since I wanted to maintain a valid visa for him while his stay in US with parents, I continued to renew his B-2 (Visitor's visa) every 6-months. The last application to extend his non-immigrant visa (B-2) was filed in Feb 2017. This visa extension would have been valid until end of August.

At time, I filed for I-485, his B-2 extension application was under review and pending, hence I had no means of knowing the outcome of that decision, hence I filed for I-485.

On September 1st, I received a denial letter for his B-2 extension, stating that since he has an approved I-130 and pending I-485, without any prejudice his B-2 extension is denied.

I was wondering whether he is still eligible for adjustment of status or since technically his visitor's visa extension was denied, hence at the time of applying for adjustment of status he was not on a valid visa, hence ineligible?

As I mentioned he is Canadian Born child (5-years old) to parents who are both Green card holders. I appreciate the response.

[tunguyen]

His status is currently I-485 pending, so he can stay here legally until USCIS makes the decision.

[newacct]

I was wondering whether he is still eligible for adjustment of status or since technically his visitor's visa extension was denied, hence at the time of applying for adjustment of status he was not on a valid visa, hence ineligible?

He is not eligible for AOS. As he is not in the Immediate Relative category, he needs to be in status at the time of filing for AOS; he was out of status with a pending EOS at the time he filed I-485; if the EOS had been approved, it would count as him having status at the time of filing, but his EOS was denied.

You should switch him from AOS to Consular Processing (unfortunately, that will require filing I-824 to move it from USCIS to NVC, which is slow), and he will consular process for an immigrant visa in Canada. He can travel to Canada briefly when the time comes to get the visa and come back to the US quickly; he should not trigger a ban upon leaving no matter how long he had overstayed prior to leaving because he does not accrue "unlawful presence" for the purposes of that ban while under 18.

Alternately, if you are going to become a US citizen very soon, he can do AOS as soon as you become a citizen.

Depending on how you became a permanent resident, he may have been able to immigrate as your derivative beneficiary, so he wouldn't have had to wait so many years, but that is moot now.