Can my mother petition me under the I-601A Waiver?

Asked almost 2 years ago - Houston, TX

I was brought to the US when I was 7. I was unable to apply under the Dream Act because of my age (32 years old). I have a BA in Business from a Cal State University, no criminal record, and pay taxes. I have lived in the US since the age of 7 and don't know or visited my place of birth since I left 25 years ago. My mother will become a US Citizen this year. My stepfather is a US citizen but I was never legally adopted by him. However, he was my guardian since I was 9. Can he submit the petition, or do I need to wait for my mother to become a US Citizen or do I even qualify? Thank you for your help.

Additional information

My entry was without inspection.

Attorney answers (5)

  1. Haroen Calehr

    Pro

    Contributor Level 17

    1

    Lawyer agrees

    Answered . So, your parents were married while you were under 18? Your stepfather was a US citizen when they got married? If this is the case you are an "immediate relative." Once the required steprelationship has been established, a stepparent remains a parent even if the "child" (you has married or is over 21 years of age), provided the marriage creating the steprelationship continues to exist, i.e your parents are still married. Second, you state you were "brought" to the US." Correct? HOW? Did you sneak in, or were you waived in, i.e hypothetically if your mother sat in a car for example, and she was waived through by a immigration officer at the border with you as a small boy in the car, and you can get people who were in the car with you all at that time to write affidavits stating the exact details surrounding your entry and inspection in the form of being waived through, then you would not need a waiver (I-601). BUT, if that is not the case, you do need a waiver, which can be applied as of March 3, 2013 from within the US, and once hopefully approved you could then travel to your country of birth and apply for the immigrant visa (green card) and return to the US since you have started to accumulate "unlawful presence" i.e. illegal time living in the US for more than 1 year after turning 18. You should really cnsult with competent immigration counsel to explore these issues and opt for a proper strategy to get you legalized and your green card. It doesn't matter that you stepfather never "legally adopted you" as long as he wa a US citizen and you were under 18 when they married and are still married this will tremendously help you in your process. If I got all the facts straight, he, i.e. your stepfather can apply for you as an immediate relative for your immigrant visa, i.e. I-130 (6 months) and also your I-601A here in the US as of March 3, 2012, then once both are approved hopefully, you go overseas to your native country, process through the embassy/consulate, and come back in a brief time provided that the waiver is approved of course.

  2. Amanda Faye Mitchell Diaz

    Pro

    Contributor Level 8

    1

    Lawyer agrees

    Answered . I would like to add a bit of information to the answers you already have. It is important to know how and when your mother became a permanent resident. If she became a permanent resident through a preference category (not as an immediate relative or some other means), you may be grandfathered and therefore eligible for adjustment of status once you have a current priority date. In that case, you could avoid a waiver altogether for unlawful presence. However, if your case is as it appears and you are not grandfathered, you could not get a provisional waiver through your mother because those are only for immediate relatives. Your mother would be a qualifying relative for an I-601 waiver, so you could still move forward.

    You should also be aware of the potentially very long waiting periods if you are not an immediate relative. If you do not currently have a pending I-130 for you with a previous priority date, you may have to wait for a long time, depending on what country you are from. My suggestion is that if you are not married (only unmarried sons and daughters of lawful permanent residents can be beneficiaries), your mother can file an I-130 petition for you immediately in order to get a priority date as soon as possible, and then once she naturalizes, your preference category will change from an F-2B to an F-1.

    Before doing anything based on advice from this answer, I strongly recommend that you consult with an experienced immigration attorney. Best of luck.

  3. Philip Alan Eichorn

    Contributor Level 19

    2

    Lawyers agree

    Answered . Your mother can file a visa petition for you. However it will not be an immediate relative petition as you are over 21. It will be a first preference petition. The provisional unlawful presence waivers (I-601A's) are only available for immediate relatives. Depending on how you entered the U.S. (with or without inspection) a marriage (for the right reasons) to a U.S. citizen will put you in place to either adjust status here or to avail yourself of the provisional waiver process.

  4. Kyndra L. Mulder

    Contributor Level 20

    1

    Lawyer agrees

    Answered . Your first step is for your mother and/or father by adopton to file an Alien Relative Petition. You should begin this process now so that when the 601A comes out March you will be prepared - you will need an approved alien relative petition before you file the I-601A.

    If your mother files the Alien Relative Petition for you as an LPR, the filing status can be changed by notifying the USCIS that she has become a USC. Filing now and then changing the status of the petitioner will speed things up.

    There are details needed to determine the best process for your particular case. I suggest hiring an experienced immigration attorney to assist you. The attorney will request the specific details from you.

    Here is a most recent update on the 601A:
    Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013.
    “This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

    “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

    Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

    In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

    Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying relative

    KYNDRA L MULDER, ESQUIRE
    25 years experience
    (904) 296-7702
    MULDERLAWOFFICE.com

  5. Eric Elliot Ludin

    Contributor Level 11

    1

    Lawyer agrees

    Answered . I am not certain that it would be possible for your mother or step father to petition for you once she becomes a US citizen without you first leaving the country. DId you enter the US legally at 7 years old? You should be aware that the rules are currently undergoing a change and may allow a stateside petition for waiver. See http://www.tuckerludin.com/2013/01/03/new-rules... But, even if you can, it could take many years for your green card to become available.

    I can offer you hope. President Obama has stated that he will make immigration reform a top priority over the next few months. You may want to wait a few months before making any decisions in order to see if there is reform or just more political talk.

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