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Applying for an I-130 for overstaying person!

Fort Lee, NJ |


Can a mother(green card holder) apply an I-130 for her son(over 21 years old) who has overstayed his non-immigrant visa? Let say the I-130 gets approved and the priority dates for his visa category become current, is there a risk of him getting deported when he tries to adjust his status?

Thank you,

Attorney Answers 4


Yes, she can petition him.
On the facts you give, there is no indication that he would be eligible for adjustment of status.
As long as he has no valid immigration status, he is deportable.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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He cannot adjust as an illegal applicant -- adult child of LPR or USC cannot be illegal in the U.S. and be able to adjust.

An attorney-client relationship is not formed by my responses to questions on Avvo. My responses are not intended to be legal advice and must not be relied upon as legal advice.

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on your facts he cannot adjust. he will need to consular process and leaving will trigger an overstay bar

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The fact that the son is out of status does not prevent the mother from filing a petition for him. However, unless the child is maintaining lawful status or eligible for benefits under Section 245(i) of the Immigration and Nationality Act, he will be ineligible for adjustment of status when his priority date becomes current.

Consult with an experienced immigration attorney who can review the facts of the case and recommend how best to proceed.

Jeffrey A. Devore, Esq.
Board Certified Immigration Attorney
Devore Law Group, P.A.
2925 PGA Blvd., Suite 204
Palm Beach Gardens, FL 33410
Telephone: (561) 478-5353
Facsimile: (561) 478-2144
Skype: jeffrey.a.devore

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