Does he need to leave the country? Or he can stay?
Because your son is over 21, he no longer qualifies as an "immediate relative" of a U.S. citizen. That means that you can petition for him with the I-130, but he will have to wait several years for a visa to become available before he'll be able to get his green card. Visas become available according to the State Department's visa bulletin (found here -- http://www.travel.state.gov/visa/bulletin/bulletin_1360.html). Your son would be in the F3 category as an adult child of a U.S. citizen. As you can see, the wait time in that category is about 10 years at this time. Your son will need another legal status in order to stay in the U.S. waiting for that visa to become available -- simply having a family petition pending is not enough and is not a legal status. If your son has an employer who is willing to sponsor him for a visa, that might be a better option.
The information offered is general in nature and not meant to be relied upon as legal advice. No client-attorney relationship is created through this information. Please consult an attorney prior to making legal decisions.
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I agree with my colleague. Since your son is over the age of 21, visa number is not immediately available to him, and a such you cannot file I485 for him. You will need to file I130 and wait until his visa number will become available, which is about 7 years. If he was to remain in the US while waiting for his visa number to become available, he needs to remain here in legal status. I suggest you consult with an immigration attorney about what options are available to your son. Good Luck.
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Employment / Labor Attorney
I agree with my colleagues. You should consult an experienced immigration attorney for this matter. You may schedule a consultation with an immigration lawyer in your area, my firm is handling these matters in New York. If you would like free legal updates on these immigration issues you may sign up for our newsletter at http://www.shautsova.com .
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