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Hello, my daughter is 15 and is out of status. I see that

Hello, my daughter is 15...
Hello, my daughter is 15 and is out of status. I see that the F2A category is now current so I was interested in applying for the I-130 and the I-485. I read "you cannot extend, change, or adjust status once you become out of status unless you are the beneficiary of a family-based petition that belongs to the Immediate Relative category." Does she qualify for that?

Thank you,
Sharon
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9/10/2013
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 110,616
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
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Unfortunately, she does not qualify for that. Under the U.S. immigration law, immediate relative is spouse of U.S. Citizen, parent of U.S. Citzen, or unmarried child of U.S. Citizen. So she has two choices.

1) You can file for her and she leaves the U.S. before she turns 18 and a half and she can finish the process outside of the U.S. without penalty since she only begins accruing illegal status at age 18 and the 3 year penalty happens at 180 days (18 and a half), or

2) You can become a U.S. Citizen before she turns 21 and then you can file for her.



Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/ and make sure you type: FOR GUILLERMO on the subject line. Thank you!

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Customer reply replied 4 years ago

Okay, so she is not accruing illegal status currently. If I apply for the I-130 and USCIS says it is taking 2 years to process, can she stay in the U.S. until it is approved? And when/if it is approved does she then leave the U.S., and apply for a visa at a U.S. consulate? And if the F2A is current, would she be approved right away to re-enter the U.S.? Also, we have had our green cards for a year. Do we have to wait 4 more years to apply for citizenship? One more question! Would we be better off applying for the Dream Act Waiver?


 


Thank you,


Sharon

If she is out of status, she is always at risk of deporation. The pending I-130 does not give her any legal status, but her risk of actually being placed into removal proceedings are very low.

She would leave the U.S. after approval of the I-130 and when she is scheduled to appear at the U.S. Embassy or Consulate outside of the U.S. to finish the process. Since she will not need a waiver to return, everything should process in about a year starting from when you file the I-130. So she would probably only have to be outside for a few days at the end of the process.


And yes, you have to wait until you have Residency status for 4 years and 9 months before applying for U.S. Citizenship.


I don't understand why she did not get Residency when you got Residency unless she was out of status at that time and you were not.

As far as the Dream Act, that is still a dream at this moment. So it is like waiting for the lottery, almost.


Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.
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Customer reply replied 4 years ago

One more thing! When filling out the form, do I put her current U.S. address down? Also her I-94 expired in Oct 2009, do it still put it down?


 


Thanks,


Sharon

Sure, I will answer, but please do not log off again without rating me positively. Since I am not paid a salary, that is the way that I can get paid. You are not charged again and your question does not close even though it says that it does. It does not and I can respond to follow-up questions even after you rate me positively.



Yes, you put her current address down, but if she will finish the process outside of the U.S., you need to fill out the part about where she will process outside of the U.S.

And yes, you put her expired I-94 down as well and send in a copy of it.
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 110,616
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
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