Getting Ready for my youngest Son's Adjustment of Status

[Casebycase]

Hello! I hope everyone is doing great :-)

After reading lots of information on the USCIS website and on this forum, I only have 3 questions before my son files the I-485 form.

Short Background:

• I'm a Green Card holder through my oldest son (who is a US citizen).
• My youngest son is 30 years old, unmarried and he was admitted with the most recent date of entry being 01/12/2014
• Class of Admission: Visa I (Media - Journalist)
• Admitted Until Date: D/S (Duration of Status)
• His US Visa: His US Visa (Class I, Media - Journalist) was Issued in April/2014; and it expired: April/2019.

Being that D/S (Duration of Status) stamped on the I-94 Form is more ambiguous than a specific date on which the non-immigrant must depart the US; I still have some doubts.

As an LPR, I filed form I-130 to petition my son within the US. He has been here in the US for 6 years and 3 months. He hasn't left since his last entry.
I think he was classified as Family-Sponsored Preference (F2B), and it seems it's going to take more waiting to be able to file I-485.

However, his case is different because I was reading this USCIS memo on Unlawful Presence, and it's kinda confusing for non-immigrants with D/S status. In short, the Memo says:

• (ii) Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge's order. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated. See 8 CFR 239.3.

QUESTIONS

What I understand from this is that a non-immigrant admitted under D/S status must be found by an Immigration Officer or Immigration Judge to be in violation of the Visa, AND deny form I-130 in order to start counting the days of the Unlawful Presence. Is this correct?

Also, if it hasn't been determined that my son has been Unlawfully Present in the U.S., How do I know if he has to file or not I-601A, Application for Provisional Unlawful Presence Waiver?

Lastly, it seems Family preference categories (F2B) generally end up going through the consular process. How can my son safely go through the Consular Process without being barred from entering the US again (after leaving to go to the Consulate abroad)?

I appreciate all the help. THANK YOU SOOO MUCH ???? Blessings ????

[newacct]

They will not deny I-130 for him being out of status. Basically, if he applied for say, Extension of Status or Change of Status with I-539, and it was denied with a determination that he was out of status, he would start accruing unlawful presence then. Or maybe if he applied for some kind of thing like an EAD, and it was denied with a determination that he was out of status, he would also start accruing unlawful presence then. But if he never applied for anything, and was never in removal proceedings in immigration court, then he has not accrued any unlawful presence.

But just because he doesn't have unlawful presence doesn't mean he can do I-485 (Adjustment of Status). To be eligible for Adjustment of Status in his category, he needs to be in status. To be in status in I status, he needs to be working for the same employer in the same information medium that he was admitted to I status on. You have not indicated whether he is in status, but I am assuming that he is not (otherwise you would not be asking about unlawful presence). Since he is out of status, he cannot do Adjustment of Status, and must do Consular Processing abroad. Since he has not accrued any unlawful presence, he will not trigger a ban upon leaving the US, so he should be able to leave at the time of the visa interview abroad, get the immigrant visa, and come back to the US quickly. He will not fill out I-485 during this process.

[Casebycase]

[QUOTE=newacct;n753525]

if he never applied for anything and was never in removal proceedings in immigration court, then he has not accrued any unlawful presence.
Thanks so much for your input. He has never applied for anything else before (No EAD, no I-539, no other forms, No removal, No courts, No criminal history, No trouble with police). Basically, he entered in December 2014 as a journalist and has stayed here with D/S status. It's good to know he hasn't started to accrue any unlawful presence yet. USCIS hasn't approved or denied yet the I-130 form I filed on his behalf.

he needs to be working for the same employer in the same information medium that he was admitted to I status on.
I was reading about I Status (Media), and it seems that this type of visa allows him to change the employer while being in the US. He's finishing his job with the original employer due to Covid-19. But I don't know if it's a smart strategy to report this or try to change to another employer since it could trigger a review on his status and then he would start accruing unlawful presence. I'm not sure if that's smart. Is it a better strategy to delay this as much as possible until we receive an approved I-130?

Consular Processing abroad.
I'm not familiar with the Consular process to be honest. I think we have to wait until I-130 is approved, and then we'll find the "Priority Date" in the approval receipt. But what will he have to do with that priority date? Will he have to file other paperwork on that priority date? If he cannot file I-485 at the priority date when eligible... then what type of forms he'll have to file in order to get the Green Card?

he should be able to leave at the time of the visa interview abroad, get the immigrant visa, and come back to the US quickly.
I wonder how he has to prepare for that Consular interview, or what will they ask in a Consular interview... so he can prepare with all the evidence, etc..


I appreciate your guidance! Thanks so much for your help ????

[newacct]

The priority date is the date when the I-130 was filed (i.e. when it was received by USCIS). You can see it in the I-130 receipt. How long it takes until I-130 approval doesn't really matter, as I-130 approval doesn't by itself allow him to do anything. He needs to wait until a visa number is available for his category and priority date before he can do Adjustment of Status or Consular Processing. If you look at the https://www.immihelp.com/all-visa-bulletins/
for the F2B category, visa numbers are now available for priority dates about 5.5 years ago (except for people born in Mexico or the Philippines whose wait is much longer), so if the wait remains steady, a visa number will be available for your son about 5.5 years after you filed I-130, and so that's when he can proceed to Adjustment of Status or Consular Processing.

If someone in I status changes employer or changes information medium, they are supposed to file I-539 to get I status with the new employer. Yes, there is risk in filing I-539 in that if it is denied, he will start accruing unlawful presence, whereas if he doesn't file I-539 and goes out of status, he doesn't accrue unlawful presence. But staying out of status for years (I don't know when you filed I-130 so I don't know how long it is until a visa number is available for him) in the US is not pleasant. If he leaves his employer, no decent employer should allow him to work as his I-94 in I status is only for a specific employer.

If he is doing Consular Processing abroad (and I assume he will), you guys will simply wait for NVC and the consulate to contact the two of you maybe a year or so before a visa number becomes available (so maybe around 4.5 years after the priority date) regarding the next steps and what they need you to submit.

[Casebycase]

[QUOTE=newacct;n753550]

I love how clear you explain this. I'm starting to understand ????

for the F2B category, visa numbers are now available for priority dates about 5.5 years ago
OMG! 5.5 years for an immigrant visa to become available seems like an eternity. It has to be terrible for people from China/Philippines/India & Mexico to wait a decade or more. We are from South America, and it seems there is a limitation of 15,600 immigrant visas per year for our country.
Does it make any difference if my son waits here in the United States?
Is it faster than waiting in south America?
It's going to be impossible for him to wait here without working to make money (and that'll be a violation of the visa) ????

Consular Processing abroad - NVC
Also, what can't he do while waiting for an available visa? I read he cannot marry because F2B is only for unmarried sons/daughters. Unless he marries his girlfriend (a U.S. Citizen), and she petitions for him, right? (There would be a visa immediately available to him for spouses of U.S. citizens, right?).

Lastly, my oldest son is a U.S. citizen. I read that if my oldest son petitions my youngest son (his brother), he would be classified as Fourth: (F4) Family-Sponsored Preference but the date for filing in this category is October/2007.... is worth it to file for this F4 category?

Words can't describe how grateful I feel for your kindness ???? Thank you!

[newacct]

You basically got everything correct. He can't marry or his petition will be void (or, at least, he can't marry before you become a citizen; but even if he marries after you become a citizen, the wait for married children of citizens is still much longer so it's just better not to marry). And yes, your older son can petition him as a sibling, but the wait in F4 is much longer than in F2B. It's okay to file another petition as a backup just in case (multiple petitions do not conflict) if you guys want.

The legal ways for him to stay are either if he can continue in I status, by changing to a different employer and filing I-539, if this will still be a media job that qualifies for I status, or if he can find an employer who will petition some kind of work status for him like H1b, O1, etc.

[Elu]

Could anyone help me with sample of sponsor letter; am for beneficiary.

[Casebycase]

Could anyone help me with sample of sponsor letter; am for beneficiary.

My son gave me the following letter attached to Form I-864. It's very brief since all the information is in Form I-864 + Evidence of everything in that form. My son told me that if they required information or anything else, they'll send me a Request For Evidence (RFE) notice. If something absolutely requires an explanation, you may write a short paragraph to explain.


Month DAY, 2021


[We sent it to Chicago, but double-check the address where you should file]
U.S. Citizenship and Immigration Services
Attn: FBAS
131 South Dearborn - 3rd Floor
Chicago, IL 60603-5517



Subject: I-485, Application to Register Permanent Residence or Adjust Status (Affidavit of Support)
Petitioner:
Beneficiary:
Section: Parent of U.S. Citizen, 201(b) INA




Dear USCIS representative:


My name is (The citizen/U.S. resident), and I became a U.S. citizen through Naturalization on DATE (Please see my Certificate of Naturalization enclosed). I have filed a petition for my mother to become a U.S. permanent resident with the required documentation. Kindly advise if there is anything else required.




Sincerely,



[Wet Signature]
petitioner's name
A#
Phone Number:

[Casebycase]

And yes, your older son can petition him as a sibling, but the wait in F4 is much longer than in F2B. It's okay to file another petition as a backup just in case (multiple petitions do not conflict) if you guys want.

Hi Newacct,
I very much appreciate your help :-)
I wanted to ask your opinion. I noticed that the Processing Time varies by Service Center. For example, I-130 (Petition for Alien Relative) takes a while in California/Vermont Service Centers, BUT it's quickly expedited at Potomac/Nebraska/Texas Service Centers. Not sure if you know about the internal process on why the same classification is sent to a Service Center, while another is sent to a quicker Service Center. Is there a way to have a specific Service Center work on our case? I know it has to do with geographical residence, but not sure about the criteria:

USCIS Service Center	Form	Classification	Estimated Processing Time
California Service Center Vermont Service Center	I-130	Permanent resident filing for an unmarried son or daughter over 21	40 Months to 52 Months
Nebraska Service Center	I-130	Permanent resident filing for an unmarried son or daughter over 21	7 Months to 9.5 Months
Potomac Service Center Texas Service Center	I-130	Permanent resident filing for an unmarried son or daughter over 21	1 Week to 7 Months

https://egov.uscis.gov/processing-times/

I found this information on the USCIS website. My best guess is that this Classification goes first to California or Vermont and sits there for 40+ months. Then, when it reaches the required time for the case to continue being reviewed, USCIS transfers the case for processing to Nebraska, Potomac or Texas ... Am I correct? Any thoughts?

I'm finding the Immigration field very interesting

[newacct]

As long as the I-130 processing time is shorter than the wait for visa numbers (and it will almost certainly be in this case), the I-130 processing time doesn't matter. (In fact, in some cases a longer I-130 processing time is better with respect to children aging out, but I digress.)