Immigration Site

Hello Everyone, thanks for your help in advance!

I came into the US in August 1986 on a student Visa and under the legal guardianship of my aunt and uncle, with my aunt being a US citizen. In August 1988, my aunt (my dads sister) filed for an immigrant petition for my Dad and my mom, sister and I were included on the petition.

In January of 1989 my aunt and uncle filed to adopt my sister and I from my parents and the court order was finalized in July of 1989, after my 16nth birthday and therefore no immigration benefits resulted. I continued on my student visa and after my Graduate degree in Computer Science, moved to an H-1. After being on an H-1B for about six years, when I lost my job in 2002 some lawyers advised me given that my whole family were US residents, there was no way I would get a new H-1B rentry visa if I left the country for a year. Based on their input and having a Social Security card without any restrictions from 1986 and a Drivers license, they suggested I could work till I got my status adjusted through my parents or through marriage.

Here is the million dollar question, should I pursue my Green Card through my wife or through my biological parents based on my aunts petition for them in August 1988 which I aged out since the visa was not available till around December 2001.

As of Decemer 18, 2010, I just got married and my wife is an US citizen. However, I recently saw the Child Status Protection Act (CSPA) allows for adjustment of status for children who aged out waiting for visas to be available for their parents petition.

Which one do you think is better. I like CSPA because it looks like it can give me a Green Card immediately without the 90 day wait for a EAD/Work Authorization Document, and an interview in six months before obtaining a conditional green card but I like to hear the pros and cons given the complications of my case.

You have complex history.

That adoption may have effects that you do not realize. OR perhaps you know all TOO well. If your sister was under the statutory age prescribed in the law at that time, then she has no immigration relationship to the biological parents. The adoptive parents could have screwed up. IF the adoption was valid for immigration purposes and they followed through at the time, your sister would be a citizen already. Prior to 2/27/2001, adopted children of a USC required a separate application and approval with an Oath before reaching age 18. Just curious, did your sister get any immigration or citizenship status from the adopted parents?

IF your last entry into the U.S. was legal, then your USC spouse can file an I-130 along with your I-485 and I-765 (forget about the I-131 and do not depart without a greencard). You likely qualify for adjustment under INA 245(a). Unlawful presence (overstay) and unlawful employment are forgiven to an IR of a USC.


Background:

In 1981, the definition of child at INA 101(b) for immigration (rather than naturalization/citizenship) purposes was changed:

Subsec. (b)(1)(E). Pub. L. 97-116, Secs. 2(b), 18(a)(5)(C), substituted ``sixteen for ``fourteen, and ``; or for the period at the end.
Subsec. (b)(1)(F). Pub. L. 97-116, Sec. 2(b), substituted ``sixteen for ``fourteen.

In 1999, the amendments consisted of: [this is when a sibling under 18 was included with the younger adopted sibling]

Subsec. (b)(1)(E). Pub. L. 106-139, Sec. 1(a)(1), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (b)(1)(F). Pub. L. 106-139, Sec. 1(a)(2), designated existing provisions as cl. (i), substituted ``; or for period at end, and added cl. (ii).

In 2006: [relates to VAWA only]

Subsec. (b)(1)(E)(i). Pub. L. 109-162, Sec. 805(d), inserted before colon ``or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household.

No, it doesnt make any difference. You can renew it as usual. You need to stop this trolling crap, your are going to be banned from this forum.

After being on an H-1B for about six years, when I lost my job in 2002 some lawyers advised me given that my whole family were US residents, there was no way I would get a new H-1B rentry visa if I left the country for a year. Thats nonsense. H-1B allows immigrant intent.

However, I recently saw the Child Status Protection Act (CSPA) allows for adjustment of status for children who aged out waiting for visas to be available for their parents petition. There is a limited time window where you have to make use of that. Judging by your timelines, it appears that you are years past that window of opportunity.

All indications are that your wifes petition is your only option for a green card.