In our Ask 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 [email protected]. 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.

1) QUESTION: I am a US citizen. Can I sponsor my child’s dad for a green card?

ANSWER: No. You cannot file a petition for someone based solely on them being the parent of your child. A US citizen can file an immigrant petition (the first step toward a family-based green card) for 1) their spouse; 2) their parents (if the US citizen is at least 21 years old); 3) their siblings; and 4) their children. A US Permanent Resident (green card holder) can file an immigrant petition (the first step toward a family-based green card) for 1) their spouse; and 2) their unmarried children. Green card holders cannot petition for their parents, siblings, or married children.

It is recommended that you consult with me or another qualified experienced immigration lawyer before filing anything, as the immigration laws are very complicated.

2) QUESTION: I came to the US 15 years ago on a visitor’s visa. Can my company sponsor me for a green card?

ANSWER: As a general rule, in order to be eligible to apply for Adjustment of Status (an application for a green card in the US), an applicant must show that they have maintained valid immigration status at least until the time they file the application for adjustment of status. Therefore someone who enters on a visa, but overstays past the time listed on their I-94, is not eligible to apply for adjustment of status unless they fall within one of the few exceptions to this rule. The more common exceptions to this rule are a) adjustment for an Immediate Relative, b) adjustment under the 245(i) amnesty, and c) adjustment under 245(k). There are other exceptions to this rule, however these three are the most common.

Immediate Relative Exception: An Immediate Relative (IR) is the 1) spouse of a U.S. citizen or the 2) unmarried child of a U.S. citizen who is under the age of 21. If the foreign national’s most recent entry into the US was with a visa, was admitted on the Visa Waiver Program, or was paroled into the U.S., then they are able to apply for Adjustment of Status based upon the fact that they are applying as an Immediate Relative.

245(i): Another exception is where the foreign national can show that 1) an immigrant petition or labor certification was filed on their behalf before January 14, 1998, or 2) that an immigration petition or labor certification was filed on their behalf before April 30, 2001 and they were in the U.S. on December 21, 2000. When filing under the 245(i) “amnesty” the foreign national must pay an additional $1,000 penalty filing fee.

245(k): Under the 245(k) exception, a foreign national who is filing a green card application based upon an immigrant petition filed by their employer may still be eligible to apply despite falling out of status. To be eligible under 245(k) the foreign national must not have been out of status, worked without authorization, or done anything else to violate their status for a total of more than 180 days between the time of their last entry into the U.S and the time they file the green card application.

If you are not eligible to apply for adjustment of status in the U.S., you might still be eligible to apply for an immigrant visa at the U.S. Embassy or Consulate in your home country. However, you should consult with an immigration attorney before doing so to make sure that you are not barred from receiving a visa under any of the categories of inadmissibility.

This is a brief overview of these complex rules. As such, I recommend that you consult with a qualified immigration attorney before filing an application for adjustment of status under one of these rules.


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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

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