My asylum case was denied, went to the bia, and now is in the federal court being reviewed. There is a chance that my case could be remanded for a new trial at the immigration court because of the ineffective assistance of my former counsel.
Now, my sister who is US citizen wants to file a I-130 petition for me and my wife and daughter. Can this be approved if I live in the US? I know this is a long process, but at the end, if I am still living here, could I adjust my status?
Hello. Yes, your I-130 can be (in theory) approved while you are in removal proceedings. However, the wait for the category of siblings of US citizens is extremely long right now, and this also depends on the country you are from. Further, if you have other issues that require a waiver of grounds of inadmissibility, and approved I-130 from a sibling does not cure that problem. Without a qualifying relative, such as a US citizen/LPR spouse or parent, you would be likely ineligible for a waiver. Lastly, the ability to adjust while in the USA depends on how you entered the USA (with a visa or without inspection). These are all complex issues and I highly suggest that you work with a knowledgable immigration attorney to assist you. Good luck.
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Will be futile, for more than one reason:
1. While your sister can file an I-130 petition on your behalf, those siblings' petitions take up to 14 years to process, and do not give you the legal right to live and work in the USA during any of those years.
2. A "Remand" does not take 14 years - will take two (2) years, at the very most. Thus, you have no choice but to continue with your asylum application in the lower, immigration court and hopefully you have a good case which you will be given the chance to again present (properly, this time?) and hopefully be granted.
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Yes, the I-130 could be approved if you are still in the US. Once approved, if you are still in the US, you may be able to adjust status depending on whether you meet additional criteria. If this is the route you want to pursue, I strongly suggest you retain or at least consult an immigration attorney regarding this process; oftentimes, immigration matters in general are more complicated than they seem.
The petition will probably be approved. The big question is whether it will give you any immigration benefits. First of all, normally it takes about 10 to 12 years for a visa to be available under this category. Second, even when a visa becomes available, it will be necessary to evaluate whether you will qualify for adjustment of status. Consult with an experienced immigration lawyer to evaluate your case.
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