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Can a 20 yr old who overstayed his b-2 visa be petitioned by his permanent resident parent without having to leave the country?

Greenbelt, MD |

I am 20 years old and I immigrated to the US when I was 8 with a (B-2) tourist visa. I've lived here since and have never left.

My mother is a permanent resident and she wants to petition for me via the I-130 form, but we are getting conflicting information.

Some lawyers are claiming that since I have been out of status for more than 365 days I will be forced to leave the country and be penalized with a 10-year entry bar, unless I file for a waiver, which is very difficult to get.

Others are saying that since I entered the country legally my mother can simply file the I-130 form, I can wait for my turn and adjust my status without having to leave the country and therefore avoid the triggering of the bar altogether.

I would appreciate an accurate response.

Thank you

Attorney Answers 3


If your mom became a citizen and filed for you before you turn 21, you can stay here thorugh the process.

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Generally speaking if petitioner is not a U.S. citizen, then their son or daughter does not count as a relative of a U.S. citizen and therefore the petition gets placed in the preference categories. Because the person would not be immediately eligible for a Green Card they would be in unlwaful status until a visa number becomes available to them. During this time USCIS may attempt to institute removal proceedings and because there would be no immediately available visa, the person would be unable to adjust status.

Please go see an AILA certified immigration attorney about your case. I suppose there are a few attorneys who practice immigration law without understanding all the intrcacies, but an AILA attorney should be able to give you solid immigration advice about your particluar circumstances. Also, how long has your mother been a Lawful Permanent resident?

No information contained in this message, unless expressly denoted therefor, is intended to establish any attorney client relationship. No attorney-client relationship exists between us (Peter Acker and his associates and you) unless a written retainer or fee agreement has been signed and issued to you.

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You can be petitioned. The real question is whether you can actually get the green card without having to leave the US. That would depend on whether you qualify for 245(i).

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.

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