Immigration Site

US Immigration: can I file a i-485 to adjust status?
Im confused, could use help.

My father just went for his "green card" interview as his i-485 application has been approved and his priority date became available. It has since regressed, meaning that even though hes had the interview, hell now have to wait a few months to become an LPR, but essentially its just all loose ends for him now.

I was listed as a derivative on the initial i-130 application (which was about 12 years ago as the visa wait time for our category took that long), so I have since "aged out", and as far as I was aware, not eligable to file. My sister too has "aged out". In fact, she was always too old as she was over 21 when the filing began (long story, but we thought my Uncle had turned in the paperwork 8 years before... big liar!)

So thats it in a nutshell. I assumed I wasnt eligable. I now no longer live in the US, although yes, I did overstay since I was brought there as a minor. I left when I was able to, but my father remained and adjusted his status. The weird thing is the woman conducting the interview asked extensive questions about myself and my older sister, and in the end she said we should both file an i-485 to adjust status.

Does this make any sense? We dont have our own i-130 approved, but she said something about filling in the application with an A-Number that my father now has, and using that. In my case she said to explain that the process started when I was a minor, and in my sisters case shes asked to explain that she is unmarried and an adult although being aged-out from the start.

The application itself (the original i-130) was approved in less than six months, so I didnt think the child protection status act, or whatever its called would apply to me. Can I adjust my status now? I left the country with no problem... I simply bought a ticket back to Europe and just left... no questions asked. No stamp in passport... no deportation... nothing. I would desperately want to return to the US, and so would my sister, but we need to know what we would need to do.

Speaking cryptically, the woman conducting the interview also said "they would need to file the applications at the right time". My father didnt have the sense at the time to ask what that meant. I asked a lawyer all these questions and the lawyer said she couldnt see how I would have a case to apply, although she made more of an issue out of the fact that I overstayed in the US, and that I wouldnt be able to return for 10 years, despite the fact that I have no proof that I overstayed (came on my parents passport... on the visa waiver program... left with no hassle on my own ticket).

Is there anything I can do? Anything I should know? What about my sister? Is there any validity to any of this? It costs $1000 to file each application, what should I do? Also, is there any way I can do all the paperwork from the UK? I live in the UK and would need to adjust my status from here if possible.

Please help! Thanks!

I left when I was able to, but my father remained and adjusted his status. His status is not adjusted yet; he only applied for adjustment of status.

The application itself (the original i-130) was approved in less than six months, so I didnt think the child protection status act, or whatever its called would apply to me. You are correct, unless you are younger than 21 years and 6 months old.

So unless you are that young, all you and your sister can do now is wait for your father to get his green card, then your father can file for both of you. Meanwhile, make sure neither of you gets married before your father becomes a US citizen.

If your sister is still in the US illegally, shell have to leave the US and wait out the 10 year ban to regain eligibility for a green card, unless she is eligible for 245(i). From your story it appears your father is eligible for 245(i), so your sister probably will be grandfathered for that eligibility also. However, if you left the US after turning 19, you will have to wait out the 10 year ban -- 245(i) doesnt waive the ban if you leave the US.

Thanks for your help. This is what I assumed. I have had a lot of disappointments and bad advice over the last 15 years. Im 28 now, and my sister has left with me.

My question then is, what would happen if I bought a plane ticket and tried to enter the US? When I left, I left without a problem. I simply bought a ticket and got on a plane. I entered under my parents passport and they came in on the Visa Waiver Program (British Citizens). When I left, they didnt stamp anything in my passport (which, by the way, was ordered while I lived in the US from the embassy in DC... it was the first time I ever used it for travel!)

There was nothing in my passport. Do they take track of the number or something? How would they know Ive left? How do they know I was there in the first place? My point is, how would they impose a 10 year ban if I wasnt deported or removed?

The airline knows that you left, and since 9/11 they transmit passenger data to Homeland Security. So the immigration authorities have a record that somebody with your name and date of birth and passport number left the US on a given date.

If you attempt to visit the US, perhaps the officer at the airport or border wont have enough information at his/her fingertips to be able to make the connection that you were the same person who was in the US illegally as a child.

But if you apply for a green card, the paperwork and deep scrutiny and background checks will reveal the connection to your father, and possibly also uncover the fact that you were living in the US (presumably you went to school and did other things that left a paper trail of your existence in the US). You will also be unable to provide evidence that you were living outside the US during the period in question.