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As a US citizen, can I apply for my brother's adjustment of status from a student F-1 visa to a green card?

Marshalltown, IA |

I am a US citizen and have a brother who is attending a university in US on a student F-1 visa. As a family member I would like to apply for his adjustment of status to obtain a green card. Is applying for his green card now going to void his student visa? If so, what would be the best course of action in our case? He is currently in his second year of studies.

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Attorney answers 4

Best Answer
Posted

Hello,

A U.S. citizen can sponsor a sibling, but unfortunately it is a very long process. It invovles first submitting and obtaining approval of an alien relative petition and then waiting on the priority date (which is approximately the same date as the filing date) to become current. In the category for brothers and sisters of U.S. citizens, that wait time is currently at least 12 years, and possibly longer, depending on your brother's country of citizenship).

Your brother is not eligible to file for adjustment of status based on your family petition unless/until the alien relative petition is approved AND the priority date is current. If he manages to remain lawfully in the U.S. during all that time (as a student, or in some other status), then he could file for adjustment. However, if he goes out of status, under current law, he would not qualify for adjustment and would have to depart the U.S. and consular process (if eligible) to obtain his residency (green card).

For a general overview of the process, you may wish to see http://www.uscis.gov/USCIS/Resources/A1en.pdf. However, do note that your brother is NOT eligible to file the I-485 together with the I-130, as he is not an immediate relative, but rather a (4th) preference category applicant.

Filing the I-130 does not invalidate a student visa, but it potentially may cause complications in the future if your brother needs to renew the student visa. Thus, if you are thinking about filing the I-130, you and your brother may wish to consult with an immigration attorney about those potential risks and consequences before you submit the petition.

Best wishes,
Jennifer

Ms. Doerrie's answer to your question is general in nature, as not all facts and circumstances relating to the specific person(s) and situations involved are known to her. Ms. Doerrie recommends consulting with an immigration attorney regarding your specific facts and circumstances prior to making any legal decision or submitting any form or application. This response does not create an attorney/client relationship.

Posted

You cant apply for adjustment of status on behalf of your brother, you can only file for family reunion I 130 petition. Waiting period is about 10 years if your brother will remain in US during the 10 years he must be here legaly on his F-1 or any other legal status.

Posted

As a citizen you can petition for your brother. There will be a considerable wait (please see most recent visa bulletin). However, he may stay in the United States while waiting. This question becomes more difficult if he left the country and had a new F-1 visa stamp put in his passport at his home consulate. Because of the issues involved, an experienced immigration attorney should be contacted and consulted. There are issues of what are termed non immigrant and immigrant intent and the fact that with when entering the US with an F-1 visa a foreign national may have only a non immigrant intent. However, with a pending petition for an immigrant visa, the consul may deny your brother's F-1 visa. If this sounds complex, it is. You really should consult experienced immigration counsel.

Debbi Klopman, Esq.
398 Bergen Street
Brooklyn, NY11217
www.debbiklopmanlawoffice.com
718 622 1208
This advice is considered general in nature. No attorney client relationship is formed as a result of my providing the same.

J Charles Ferrari

J Charles Ferrari

Posted

No, he may not stay in the US while waiting. An I-130 gives him no right to stay in the US.

Debbi Lee Klopman

Debbi Lee Klopman

Posted

If he has a valid F-1 visa, he should be able to remain in the United States while the I-130 becomes current

Posted

I agree with my colleagues' excellent comments. Also, it is important to udnerstand that the filing of the I-130 for your brother does not grant him any form of legal status within the US. And, its filing can actually result in him having difficulty in the future requesting entry as a nonimmigrant resulting in a greater threshold for him to show his nonimmigrant intent. Good luck.

Legal disclaimer: The statement above is provided by CC Abbott is based on general assistance and not intended to be a legal opinion because not all the facts are provided. The person requesting information and all others reading the answer should retain an attorney who is permitted by the state bar within the jurisdiction who can examine the complete facts and provide a legal opinion on your case. All information provided in the above answer and other information provided by CC Abbott does not create an attorney/client relationship within any state of Federal law.

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