3. Ask Visalaw.com

In our Ask Visalaw.com section of the SIB attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1) Question:

I came to the U.S. on a visa, but stayed past the time given me on the I-94. My father is supposed to be sworn in as a U.S. citizen in December. I turn 21 in January. Will I be able to apply for a green card in the U.S. if my father files the paperwork for me before I turn 21?

Answer:

As a general rule, you must be in status in order to be eligible to receive a green card in the U.S. One of the exceptions to this rule is for an Immediate Relative who was inspected and legally admitted or paroled when they last entered the U.S. An Immediate Relative is the spouse, or unmarried child who is under 21, of a U.S. citizen.

Under the old rules, an Immediate Relative child would lose their status as an Immediate Relative if they turned 21 before becoming a permanent resident. However, under the Child Status Protection Act, if a U.S. citizen files an immigrant petition for their unmarried child before their 21^st birthday, the child will remain an Immediate Relative, as long as they stay single, even if USCIS does not grant them status as a permanent resident until after their 21^st birthday. The same holds true of a permanent resident who files for their child and then naturalizes, becoming a U.S. citizen, before the child’s 21st birthday.

So your father does not have to wait until he becomes a U.S. citizen before filing the immigrant petition. As long as you remain single; the immigrant petition is filed before you turn 21; and your father is sworn in as a U.S. citizen before you turn 21, then you should be eligible to apply for a green card, as an immediate relative, without leaving the U.S.

2) Question:

My father is a U.S. citizen. He filed an immigrant petition for my sister in 2002. Since then, my sister has come to the U.S. on an H-1B visa. Her company filed an immigrant petition for her and she filed a green card based on this petition. She is waiting for the green card application to be approved. Recently my father received a letter from the National Visa Center telling him that he can start processing for my sister’s visa application. What do we do?

Answer:

Your father can write to the National Visa Center and tell them that your sister will be applying for a green card (Adjustment of Status) in the U.S. They will transfer her case back to USCIS.

Whether your sister will need to do anything further depends on whether a visa is available for the immigrant petition that was filed by her company. If the priority date for the company’s petition is current under the DOS Visa Bulletin, then she can just wait for USCIS to grant her permanent residence.

If a visa is not currently available for that petition, and the priority date for her father’s petition is now current under the Visa Bulletin, then she now has the option to file a new application for Adjustment of Status based upon her father’s immigrant petition. But it is a good idea for her to consult with an immigration law attorney to make sure that her father’s petition is still valid and that there is no reason to stay with the employment-based application for adjustment of status before going forward with this option.