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Canadian
08-30-2012, 08:07 PM
i went to a DACA informational seminar today, and there an attorney said that if you are approved and later on you lets say marry a U.S citizen and try to adjust your status, you will have a difficult time because of your unlawful presence of over 180 days. She even said that they can even still put a ban on you and ask you to leave the country while they process your application. Any thoughts?

Ianus
08-30-2012, 08:15 PM
It depends in what context the lawyer was talking about,that is certainly not true for those who overstayed in the US,even those who overstayed via the Visa waiver can now adjust if they overstay due to a court decision I read not too long ago.

GiveMeAChance
08-30-2012, 08:58 PM
I'm sure if you entered EWI there would be a ban. Just like if you got married right now u'd still get sent back.

However, before 8/15 I received an ad from my I-130 lawyer that said USCIS is working on a waiver to let people wait out their turn in the US without having to return to their country of Origen. It said more info would be released in the fall.

To those who entered with a valid passport and overstayed there is no ten year ban.

However, now that we have DACA I'm curious to see if there is an exception for those who EWI and are also DACA.

teacup
08-30-2012, 09:10 PM
I Think thats the I-565 waiver and its supose to take into affect for ppl in us around this time, as ppl out of usa can apply for it. Atleast thats what i read before but i can be wron on the exact name of the waiver

GiveMeAChance
08-30-2012, 09:18 PM
Here it is:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=95356a0d87aa4310VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD

Nic89
08-30-2012, 09:37 PM
DACA will not change your status at all, If you get EAD through DACA and latter you merry to USC and if your qualified 245i grandfather you can still apply through your merrige. That's exact situation I am in and I have asked 3 diffrent lawyers about this.

Nic89
08-30-2012, 09:41 PM
Yes, if DA passes with path to citizenship and if you choose to take DA route then you will not be able to adjust your staus theough other routes, since DACA only gives you limited protection not legal status, you can always choose other routes to get your green card.

GiveMeAChance
08-30-2012, 09:45 PM
DACA will not change your status at all, If you get EAD through DACA and latter you merry to USC and if your qualified 245i grandfather you can still apply through your merrige. That's exact situation I am in and I have asked 3 diffrent lawyers about this.

I don't think they were asking if it would affect their status now. They were asking about the future. If on this form you put entry without inspection and you get married to a USC later in life you will get a 3-10 year ban because of EWI. But that has nothing to do with DACA. Ud get the ban regardles. EWIs start accruing unlawful status as soon as they turn 18. But the waiver I mentioned above, if approved, will help EWIs. DACA or no DACA.

Dreamer0523
08-30-2012, 09:57 PM
What about people like me? My uncle who is a citizen filed a petition for my dad, my mom, my two sisters and me. That was back in 2000. According to lawyer, me and my sisters will not get a green card because we are over 21 now. Only my mom and dad will get it. I remember immigration took our birth certificates as well as the translated ones and some school report cards. I was only 15 back then. From my understanding, if I get married to someone that's a citizen, i will not have to leave the country because we are under the 245-i. Can someone correct me if I'm wrong?

Tortoise77
08-30-2012, 10:11 PM
Actually, technically yes you can adjust your status if you get married BUT it is a long process and it is very time consuming because if you EWI you would have to apply for a waiver (i-601) to prove harship. That means that in order to be waived the 3/10 year ban the u.s citizen needs to prove by medical/ financial and psychological reasons why the absence of the immigrant is extreme harship. Example: the u.s citizen has cancer and is married to an illegal who EWI and the immigrant is the only person who cares for the citizen and gives him his medIcation and takes him or her to the hospital. If the immigrant were to leave the country for 3 or 10 years that would prove extreme harship on the citizen to the point of death because his or her main care giver is gone. Soooo! Its not impossible but it is hard to prove. I know many many couples online who got their i-601's got approved. It is tough though! But so worth trying if there is legitimate hardship. I'm talking from experience because before the DACA was issued i was just about to file for my spouse visa using this method. But not im going through the DACA process first and then try to fix my status. I dont know how DACA will change this option for me but I dont think it would be negative. Either way sometime in the future When more info comes out I will file.

Demise
08-30-2012, 10:38 PM
i went to a DACA informational seminar today, and there an attorney said that if you are approved and later on you lets say marry a U.S citizen and try to adjust your status, you will have a difficult time because of your unlawful presence of over 180 days. She even said that they can even still put a ban on you and ask you to leave the country while they process your application. Any thoughts?

It might help in one case, but it won't make it harder. A lot of lawyers seem to have no idea about the process (my current lawyer seemed surprised when I told him that EWI and deportation order don't disqualify you, you just need the copy of the court ruling). It's impossible for them [US] to ask you to leave, as that would effectively be deportation if you have more than 180 days of illegal presence. (Illegal presence counts from your 18th birthday, or the date you EWI/visa expired if over 18)

EWI:

If you acquired more than 180 days of illegal presence and you're EWI you're fucked either way. You'll have to go back to the country of origin and will need to go through the whole I-601 waiver crap. You might try taking your chances with advance parole under daca but there's a big chance they just won't let you back in.

If you were under 18 years and 180 days the day your deferred action is approved and you are EWI. Then DACA will actually help you, as you no longer accrue unlawful presence for the duration of DACA. If you marry then you'll have to go back to the country of origin, however since you have less than 180 days of unlawful presence you do not get a ban. So your spouse can apply for you right off the bat, and you'd just need to pick up the visa from the consulate.

Overstay:

You're fine. You'll be able to adjust without leaving the country.

Deportation order + Overstay:

If you were ordered deported while under-aged and are not EWI you could get a court to overturn the deportation order.

Deportation order + EWI:

You're fucked. You can't file I-601 since you have a deportation order, once you leave you're considered deported and then you'll have to try I-212, which is nearly impossible to get unless your spouse is really sick (like cancer). You can't get the deportation order waived because for that there needs to be some relief available if you didn't have the order, but there isn't since you're EWI. Should the provisional waiver finally be put in action, you can't apply for that either as you have a deportation order.


If you're currently 17 or younger and have a gf/bf willing to marry you for papers, do it as soon as you're both 18. (You only need to be 18 to petition a spouse, for parents you need to be 21).

upperhand
08-30-2012, 11:02 PM
What about people like me? My uncle who is a citizen filed a petition for my dad, my mom, my two sisters and me. That was back in 2000. According to lawyer, me and my sisters will not get a green card because we are over 21 now. Only my mom and dad will get it. I remember immigration took our birth certificates as well as the translated ones and some school report cards. I was only 15 back then. From my understanding, if I get married to someone that's a citizen, i will not have to leave the country because we are under the 245-i. Can someone correct me if I'm wrong?

I found this... "Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent under Section 245(i) of the INA."

Follow this link http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=6c6c3a4107083210VgnVCM100000082ca60aRCRD&vgnextchannel=6c6c3a4107083210VgnVCM100000082ca60aRCRD

I'll keep looking

Diet
08-30-2012, 11:12 PM
What about people like me? My uncle who is a citizen filed a petition for my dad, my mom, my two sisters and me. That was back in 2000. According to lawyer, me and my sisters will not get a green card because we are over 21 now. Only my mom and dad will get it. I remember immigration took our birth certificates as well as the translated ones and some school report cards. I was only 15 back then. From my understanding, if I get married to someone that's a citizen, i will not have to leave the country because we are under the 245-i. Can someone correct me if I'm wrong?

hmmm my uncle petitioned my mom, dad, and me in 2001 and my lawyer said that I would still be qualified because the petition was done before I turned 21.

upperhand
08-30-2012, 11:37 PM
What about people like me? My uncle who is a citizen filed a petition for my dad, my mom, my two sisters and me. That was back in 2000. According to lawyer, me and my sisters will not get a green card because we are over 21 now. Only my mom and dad will get it. I remember immigration took our birth certificates as well as the translated ones and some school report cards. I was only 15 back then. From my understanding, if I get married to someone that's a citizen, i will not have to leave the country because we are under the 245-i. Can someone correct me if I'm wrong?

Wait... I found it... go to http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act
...then go to "CHAPTER 5 -- ADJUSTMENT OF STATUS" and click right bellow it on ACT 245 .. then scroll down to section (i):

(i) (1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--
(A) who--

(i) entered the United States without inspection; or

(ii) is within one of the clas ses enumerated in subsection (c) of this section; 2a/

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of--

(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or

(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/

Forget all section C, it does not apply to you... then go to (2)

(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if-

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the application is filed.


Always consult an accredited lawyer or a community immigration service.

Dreamer0523
08-31-2012, 01:30 AM
hmmm my uncle petitioned my mom, dad, and me in 2001 and my lawyer said that I would still be qualified because the petition was done before I turned 21.
Really? I thought we don't qualify anymore cuz we are over 21 now. However I was told that I don't have to leave the country because of the 245-i law if I do get married. I honestly don't have a personal lawyer. In asked someone n he said it takes 14 to 15 years for a Green card for my parents. So far it's been 12 years and I'm really happy for my parents. Me and my sisters are screwed since we don't qualify because of the age. Do u have good evidence that even kids that are over 21 can get it as well? Like I said, my uncle filed a family petition under the 245-i when I was only 15 so obviously immigration knows where we are and also EWI. Now I'm actually scared to apply for deferred action because that might screw me up if I do get married :-(

Dreamer0523
08-31-2012, 01:33 AM
Upperhand thank you. I know not much about immigration laws so it's a Lil bit of like Chinese to me lol. So basically it states we don't have to leave the country right? If I apply for deferred action, shouldn't USICS know me and my family have a family petition already? I'm lost now. This is why in cases like this, it's good to get a good lawyer

Nic89
08-31-2012, 05:46 AM
I don't think they were asking if it would affect their status now. They were asking about the future. If on this form you put entry without inspection and you get married to a USC later in life you will get a 3-10 year ban because of EWI. But that has nothing to do with DACA. Ud get the ban regardles. EWIs start accruing unlawful status as soon as they turn 18. But the waiver I mentioned above, if approved, will help EWIs. DACA or no DACA.

Even if you put EWI but if you qualified for 245i grandfather law then you can marry yo USC without leaving the country and it will not triger 3/10 yers ban, that's what 245i help you if your granfathered.

Nic89
08-31-2012, 05:49 AM
Wait... I found it... go to http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act
...then go to "CHAPTER 5 -- ADJUSTMENT OF STATUS" and click right bellow it on ACT 245 .. then scroll down to section (i):

(i) (1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--
(A) who--

(i) entered the United States without inspection; or

(ii) is within one of the clas ses enumerated in subsection (c) of this section; 2a/

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 203(d) ) of--

(i) a petition for classification under section 204 that was filed with the Attorney General on or before 2a/ April 30, 2001; or

(ii) an application for a labor certification under section 212(a)(5)(A) that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and 2a/

Forget all section C, it does not apply to you... then go to (2)

(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if-

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the application is filed.


Always consult an accredited lawyer or a community immigration service.

This is what I am talking about, EWI can get their status change only if your qualified for 245i granfathered law.

Nic89
08-31-2012, 05:52 AM
Actually, technically yes you can adjust your status if you get married BUT it is a long process and it is very time consuming because if you EWI you would have to apply for a waiver (i-601) to prove harship. That means that in order to be waived the 3/10 year ban the u.s citizen needs to prove by medical/ financial and psychological reasons why the absence of the immigrant is extreme harship. Example: the u.s citizen has cancer and is married to an illegal who EWI and the immigrant is the only person who cares for the citizen and gives him his medIcation and takes him or her to the hospital. If the immigrant were to leave the country for 3 or 10 years that would prove extreme harship on the citizen to the point of death because his or her main care giver is gone. Soooo! Its not impossible but it is hard to prove. I know many many couples online who got their i-601's got approved. It is tough though! But so worth trying if there is legitimate hardship. I'm talking from experience because before the DACA was issued i was just about to file for my spouse visa using this method. But not im going through the DACA process first and then try to fix my status. I dont know how DACA will change this option for me but I dont think it would be negative. Either way sometime in the future When more info comes out I will file.

I your EWI and qualified 245i grandfatherd law, you don't have to go through this. It takes less then 6 months to get your green card.

GCdreamer
08-31-2012, 08:55 AM
What about people like me? My uncle who is a citizen filed a petition for my dad, my mom, my two sisters and me. That was back in 2000. According to lawyer, me and my sisters will not get a green card because we are over 21 now. Only my mom and dad will get it. I remember immigration took our birth certificates as well as the translated ones and some school report cards. I was only 15 back then. From my understanding, if I get married to someone that's a citizen, i will not have to leave the country because we are under the 245-i. Can someone correct me if I'm wrong?

You're right- You're grandfathered under the 245i!

Dreamer0523
08-31-2012, 09:14 AM
Well that's good to hear. Before I get married ill get the best lawyer to take care of my case because I don't wanna leave this country as part of a ban, no way.

Dreamer0523
08-31-2012, 10:11 AM
I just talked to a guy at work and he said that if we are over 21 we are not grandfathered into the 245i anymore :-( he said him, his wife and kids did the same 12 years ago and got into the 245i but that a lawyer told them his kids are not in the 245i anymore because they are all over 21. Does anyone know if that's true?

Nic89
08-31-2012, 10:37 AM
I just talked to a guy at work and he said that if we are over 21 we are not grandfathered into the 245i anymore :-( he said him, his wife and kids did the same 12 years ago and got into the 245i but that a lawyer told them his kids are not in the 245i anymore because they are all over 21. Does anyone know if that's true?

Please show this official memo and ask him to take English classes. If your grandfather then you won't loose that unill you get you greencard period, unless you get deported or caught before you fille for it. Even if you turn 100 yr old your still be grandfathered untill you adjust your status.

http://www.uscis.gov/files/pressrelease/Section245ProvisionLIFEAct_032301.pdf

upperhand
08-31-2012, 10:44 AM
Really? I thought we don't qualify anymore cuz we are over 21 now. However I was told that I don't have to leave the country because of the 245-i law if I do get married. I honestly don't have a personal lawyer. In asked someone n he said it takes 14 to 15 years for a Green card for my parents. So far it's been 12 years and I'm really happy for my parents. Me and my sisters are screwed since we don't qualify because of the age. Do u have good evidence that even kids that are over 21 can get it as well? Like I said, my uncle filed a family petition under the 245-i when I was only 15 so obviously immigration knows where we are and also EWI. Now I'm actually scared to apply for deferred action because that might screw me up if I do get married :-(

Remember CSPA?.. http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=1f0c0a5659083210VgnVCM100000082ca60aRCRD&vgnextchannel=1f0c0a5659083210VgnVCM100000082ca60aRCRD

CSPA stops the clock on your age(and your sisters) during the time the application(I-130) that your uncle filed for your family was pending, from the moment that the application was received by USCIS until the time it was approved. Those applications took about 8 to 9 years get approved. So when it comes to your "immigration age" on this particular case, you are still under 21. Your dad's case still have like 5 more years to go and even with CSPA you may still age out but remember that the 245(i) benefit will help you to adjust your status in the future. So don't be scare, make sure your family has the receipt(notice I-797) that USCIS sent to your uncle in 2000-01 when the I-130 was received and the one when it was approved(circa 2009), you will need that when you file Form I-485 Supplement A, together with I-485 and all the other forms to AOS. And remember... Always consult an accredited lawyer or a community immigration service.

upperhand
08-31-2012, 11:21 AM
I just talked to a guy at work and he said that if we are over 21 we are not grandfathered into the 245i anymore :-( he said him, his wife and kids did the same 12 years ago and got into the 245i but that a lawyer told them his kids are not in the 245i anymore because they are all over 21. Does anyone know if that's true?

Nic89 is right, which is good news for you and your friend at work... Read section 3.D

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/245iclarification030905.pdf


"D. Requirements for the Derivative Spouse or Child of a Grandfathered Alien.

Section 245(i) defines the term “beneficiary” to include a spouse or child “eligible to receive a visa under section 203(d) of the Act.” Depending on the circumstances, a spouse or child of a grandfathered alien may also be a grandfathered alien or may be eligible to adjust status as a dependent of the principal alien under section 245(i) of the Act.
(1) Spouse or Child Relationship Existed at Time of Filing of Grandfathering Immigrant Visa Petition or Application for Labor Certification submitted on or before April 30, 2001. If an alien demonstrates that a spouse or child relationship existed at the time a qualifying petition or application was properly filed on or before April 30, 2001, a principal alien’s spouse or child is a grandfathered alien regardless of any subsequent changes in the relationship with the principal alien. This means that a spouse or child remains grandfathered even after losing the status of spouse or child, such as by divorce or the child becoming 21 years of age. Such spouse or child who is grandfathered may seek to adjust status under Section 245(i) on any proper basis, if so qualified."

Now, you may not get a green card thru your uncle's application because of age out, even with CSPA, that could be what your friend's lawyer is taking about, but you will always have the benefit of section 245(i) to AOS on any other case.

And remember... Always consult an accredited lawyer or a community immigration service.

Dreamer0523
08-31-2012, 01:18 PM
OMG thank you so much. That's all I wanted to hear and see. I'm gonna go ahead and send my daca application. I'm getting married to a citizen in like two to 3 years that's why I was freaking out that 245i wouldn't protect me. Thanks a bunch.

Nic89
08-31-2012, 01:27 PM
OMG thank you so much. That's all I wanted to hear and see. I'm gonna go ahead and send my daca application. I'm getting married to a citizen in like two to 3 years that's why I was freaking out that 245i wouldn't protect me. Thanks a bunch.

Were both in same boat, So what date do you qualiied for 245i before 1998 or after?. I am exicited since I am qualifin for before 1998 so I don't even have to prove my presence in 2000, So I don't have to see RFE's.

Here is my advise: After you get your EAD theough DACA hire a lawyer to look at your file and start preparing your case now. I mean to say gathering required docments from pettion, evidence or anything oher stuff needed. So you won't have to run around when its time to file.

Swim19
08-31-2012, 01:38 PM
Remember CSPA?.. http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=1f0c0a5659083210VgnVCM100000082ca60aRCRD&vgnextchannel=1f0c0a5659083210VgnVCM100000082ca60aRCRD

CSPA stops the clock on your age(and your sisters) during the time the application(I-130) that your uncle filed for your family was pending, from the moment that the application was received by USCIS until the time it was approved. Those applications took about 8 to 9 years get approved. So when it comes to your "immigration age" on this particular case, you are still under 21. Your dad's case still have like 5 more years to go and even with CSPA you may still age out but remember that the 245(i) benefit will help you to adjust your status in the future. So don't be scare, make sure your family has the receipt(notice I-797) that USCIS sent to your uncle in 2000-01 when the I-130 was received and the one when it was approved(circa 2009), you will need that when you file Form I-485 Supplement A, together with I-485 and all the other forms to AOS. And remember... Always consult an accredited lawyer or a community immigration service.

OMG thank you so much. That's all I wanted to hear and see. I'm gonna go ahead and send my daca application. I'm getting married to a citizen in like two to 3 years that's why I was freaking out that 245i wouldn't protect me. Thanks a bunch.

This information is actually incorrect. CSPA does freeze your age but only an Immediate Relative of a Naturalized U.S. Citizen. A petition by an Uncle is not considered an immediate relative. CSPA could possibly protect you in another way by a formula to figure out your 'immigration age'. In some cases this brings your age under 21, while in others it doesn't. Check out this website (http://shusterman.com/childstatusprotectionact.html)for more information about the age calculator, as well as a lawsuit in progress for those that aged-out. Though the good news is 245i would still protect you if you were to get married.

NotAPro
08-31-2012, 02:21 PM
Great thread. I was under the assumption only the principal beneficiary was the only one who inherited the benefits of 245i.
Great news to find out that I am also grandfathered in.

upperhand
08-31-2012, 02:39 PM
This information is actually incorrect. CSPA does freeze your age but only an Immediate Relative of a Naturalized U.S. Citizen. A petition by an Uncle is not considered an immediate relative. CSPA could possibly protect you in another way by a formula to figure out your 'immigration age'. In some cases this brings your age under 21, while in others it doesn't. Check out this website (http://shusterman.com/childstatusprotectionact.html)for more information about the age calculator, as well as a lawsuit in progress for those that aged-out. Though the good news is 245i would still protect you if you were to get married.

Swim19, the imformation is actually correct, but you are correct too, everybody wins!!
CSPA does freeze the age of an Immediate Relative of a Naturalized U.S. Citizen until visa is available, and in the case of our friend Dreamer0523( Derivative) only while the application is pending, so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition, and like you said "Though the good news is 245i would still protect you if you were to get married."

And remember... Always consult an accredited lawyer or a community immigration service.

Swim19
08-31-2012, 02:49 PM
Swim19, the imformation is actually correct, but you are correct too, everybody wins!!
CSPA does freeze the age of an Immediate Relative of a Naturalized U.S. Citizen until visa is available, and in the case of our friend Dreamer0523( Derivative) only while the application is pending, so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition, and like you said "Though the good news is 245i would still protect you if you were to get married."

And remember... Always consult an accredited lawyer or a community immigration service.

It doesn't freeze the age for Dreamer0523 though because application is not for an immediate relative. As far as I can see Dreamer0523 is derivative of an uncle's petition, unless I read it wrong? It just allows the derivative to subtract the time application is pending from current age, BUT not the time waiting for priority date to become current (which is what caused me to age-out). I just think using the term 'freezing' is giving the wrong impression.

compedude29
08-31-2012, 03:43 PM
What about people like me? My uncle who is a citizen filed a petition for my dad, my mom, my two sisters and me. That was back in 2000. According to lawyer, me and my sisters will not get a green card because we are over 21 now. Only my mom and dad will get it. I remember immigration took our birth certificates as well as the translated ones and some school report cards. I was only 15 back then. From my understanding, if I get married to someone that's a citizen, i will not have to leave the country because we are under the 245-i. Can someone correct me if I'm wrong?

My uncle also applied for my dad under i-245 back in 2001 and included my mom, brother and I. From what I have been researching from USCIS site even if the children are over 21 they may still qualify if they were underage when the petition was filed. As to getting married I don't recommend it because it might totally disqualify you from your uncle's petition. This is because you are not the direct beneficiary but a derivative beneficiary. My aunt was also petitioned by my uncle and she got married and got her papers ASAP but that's because she was a direct beneficiary. I also have another uncle who was petioned by the same uncle but he was already married and just recently got his papers because his US Citizen daughter turned 21 and petioned him.

upperhand
08-31-2012, 04:41 PM
It doesn't freeze the age for Dreamer0523 though because application is not for an immediate relative. As far as I can see Dreamer0523 is derivative of an uncle's petition, unless I read it wrong? It just allows the derivative to subtract the time application is pending from current age, BUT not the time waiting for priority date to become current (which is what caused me to age-out). I just think using the term 'freezing' is giving the wrong impression.

You are right, Dreamer0523's immigration age 'stopped' while the uncle's petition was pending (most I-130's that were summitted during the last time that section 245(I) was open were pending for about 9 years), and because s/he is a derivative beneficiary, the immigration age clock started ticking again when the petition was approved, and because the father's visa is not available yet, waiting for priority date to become current, the clock is still ticking, but s/he can subtract the time that the application was pending from current age(about -9 years) ... See, I was able to say it without using the word 'freezing". It is hard for me you know, ESL, I had to cut/paste a lot.

And remember... Always consult an accredited lawyer or a community immigration service.

Dreamer0523
08-31-2012, 05:24 PM
Okay so I just got home and I asked my dad for the letter.
For RECEIPT DATE it says September 25, 2000.
For priority date it says September 15, 2000.
CASE TYPE: i130 immigrant petition for relative, fiance, or orphan.
NOTICE DATE: February 21, 2002
NOTICE TYPE: Approval Notice, Section: sister or brother of U.S. Citizen, 203 (a) (4) INA

And recently my dad notified USICS about change of address which was done last year in July 2011. The letter says this:

Unfortunately, visa numbers are not presently available for your use. You will be notified when further consideration can be given to processing your application for immigration. The reason for this delay is that there are more applicants for visas than there are immigrant visa numbers available under the limitation prescribed by law. For some visa categories, for example F3 or F4, this delay could be many years. We have no way of predicting when it will be possible to proceed with your immigrant visa application. You need not check with us any further unless you need to report a change of address or a change in your personal situation which may affect your entitlement to an immigrant visa. We will keep your case on file until further action is possible.

It had my dad's name only though. And for preference category it says F4 - BROTHERS AND SISTERS OF U.S. CITIZENS, priority date: 15SEP2000 and for Foreign State Charge ability: MEXICO.

So yeah that's all I could find and I don't know if you guys can understand it. But it's good to know that I'm protected under the 245i when I get married in a few years. So that means if we are applying for deferred action, we should let them know about it or for now leave it as it is?

Swim19
08-31-2012, 05:32 PM
You are right, Dreamer0523's immigration age 'stopped' while the uncle's petition was pending (most I-130's that were summitted during the last time that section 245(I) was open were pending for about 9 years), and because s/he is a derivative beneficiary, the immigration age clock started ticking again when the petition was approved, and because the father's visa is not available yet, waiting for priority date to become current, the clock is still ticking, but s/he can subtract the time that the application was pending from current age(about -9 years) ... See, I was able to say it without using the word 'freezing". It is hard for me you know, ESL, I had to cut/paste a lot.

And remember... Always consult an accredited lawyer or a community immigration service.

Technically the clock was always ticking. It doesn't stop or freeze, and then start up again, but I suppose if you want to think of it in that way you can. All a derivative beneficiary can do is subtract the pending time. For me my application was only pending for 6 months before it was accepted. I was only 16 at the time my aunt's petition was submitted and 27 when approved - making my immigration age over 21 (I could only subtract 6 months, even though we waited an additional 11 years for priority date to become current). So it really comes down to luck. Had I been 21 and five months when my priority date became current, I would have been able to adjust.

Nic89
08-31-2012, 05:34 PM
Okay so I just got home and I asked my dad for the letter.
For RECEIPT DATE it says September 25, 2000.
For priority date it says September 15, 2000.
CASE TYPE: i130 immigrant petition for relative, fiance, or orphan.
NOTICE DATE: February 21, 2002
NOTICE TYPE: Approval Notice, Section: sister or brother of U.S. Citizen, 203 (a) (4) INA

And recently my dad notified USICS about change of address which was done last year in July 2011. The letter says this:

Unfortunately, visa numbers are not presently available for your use. You will be notified when further consideration can be given to processing your application for immigration. The reason for this delay is that there are more applicants for visas than there are immigrant visa numbers available under the limitation prescribed by law. For some visa categories, for example F3 or F4, this delay could be many years. We have no way of predicting when it will be possible to proceed with your immigrant visa application. You need not check with us any further unless you need to report a change of address or a change in your personal situation which may affect your entitlement to an immigrant visa. We will keep your case on file until further action is possible.

It had my dad's name only though. And for preference category it says F4 - BROTHERS AND SISTERS OF U.S. CITIZENS, priority date: 15SEP2000 and for Foreign State Charge ability: MEXICO.

So yeah that's all I could find and I don't know if you guys can understand it. But it's good to know that I'm protected under the 245i when I get married in a few years. So that means if we are applying for deferred action, we should let them know about it or for now leave it as it is?

Priority date will do it, that is all you need and since your petition was filled in 2000 you will have to prove that you presence in US before Dec 2000.

upperhand
08-31-2012, 07:01 PM
Okay so I just got home and I asked my dad for the letter.
For RECEIPT DATE it says September 25, 2000.
For priority date it says September 15, 2000.
CASE TYPE: i130 immigrant petition for relative, fiance, or orphan.
NOTICE DATE: February 21, 2002
NOTICE TYPE: Approval Notice, Section: sister or brother of U.S. Citizen, 203 (a) (4) INA

And recently my dad notified USICS about change of address which was done last year in July 2011. The letter says this:

Unfortunately, visa numbers are not presently available for your use. You will be notified when further consideration can be given to processing your application for immigration. The reason for this delay is that there are more applicants for visas than there are immigrant visa numbers available under the limitation prescribed by law. For some visa categories, for example F3 or F4, this delay could be many years. We have no way of predicting when it will be possible to proceed with your immigrant visa application. You need not check with us any further unless you need to report a change of address or a change in your personal situation which may affect your entitlement to an immigrant visa. We will keep your case on file until further action is possible.

It had my dad's name only though. And for preference category it says F4 - BROTHERS AND SISTERS OF U.S. CITIZENS, priority date: 15SEP2000 and for Foreign State Charge ability: MEXICO.

So yeah that's all I could find and I don't know if you guys can understand it. But it's good to know that I'm protected under the 245i when I get married in a few years. So that means if we are applying for deferred action, we should let them know about it or for now leave it as it is?

It looks like you qualify for section 245(i), and here we are having lengthy discussions about CSPA and I see that it does not apply to you( to Qualify for CSPA you must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.) I don't know why I assumed that your uncle's petition was summited between Dec-2000 and April 30 2001, those petitions were pending for 9 years, my apologies. Anyway, congratulations, get married, multiply and replenish the earth, and don't forget to file I-485 Supplement A with the $1000 fee with your AOS package.

And remember... Always consult an accredited lawyer or a community immigration service.

MaskedLuchador
08-31-2012, 07:33 PM
i went to a DACA informational seminar today, and there an attorney said that if you are approved and later on you lets say marry a U.S citizen and try to adjust your status, you will have a difficult time because of your unlawful presence of over 180 days. She even said that they can even still put a ban on you and ask you to leave the country while they process your application. Any thoughts?

They were probably talking about Dreamers who are approved for DACA and are both EWI and under 18. Since DACA doesn't provide lawful status, staying in the US past 18 would get you a 3 year ban (before 18 & a half) and the 10 year ban after (if I remember correctly??).

upperhand
08-31-2012, 07:53 PM
They were probably talking about Dreamers who are approved for DACA and are both EWI and under 18. Since DACA doesn't provide lawful status, staying in the US past 18 would get you a 3 year ban (before 18 & a half) and the 10 year ban after (if I remember correctly??).

MaskedLuchador is right.. "DACA doesn't provide lawful status"... BUT It is very important for those who are about to turn 18 or just turned 18, to send their applications ASAP. If on the day that your I-821D is approved it has been 180 days or less from your 18th birthday, you will not activate the 3/10 year bar if you have to leave the country because, according to the DACA website "If your case is deferred, you will not accrue unlawful presence during the period of deferred action". The 3 year bar applies if you accrue from 181 days to a year of unlawful presence, the 10 year bar applies if you accrue a year or more, and remember, the person has to depart the United States and subsequently seek to re-enter for these bars to apply. In some cases the person is allow to receive the green card in the U.S.(Adjusment of Status or AOS) and 'the unlawful presence bars" do not apply, and in other cases the person have to leave the U.S. and apply for an immigrant visa at a U.S. embassy/consulate, and in that case, the bars may apply.
There are many factors that determine if you can AOS in the U.S.: manner of entry(inspected or EWI), who is filing a petition for you(immediate us citizen relative like parent, spouse ,son/daughter or if it is a brother or employer), if you are the beneficiary or derivative beneficiary of a I-130 or I-140 that was filed at the time that section 245(i) was open...and many other factors.. there are also waivers for the 3-10 year bars(hard to get) and of course, if the Dream Act passes or if section 245(i) opens agian, many people will be able to AOS. Always consult an accredited lawyer or a community immigration service.

From the USCIS DACA website:


"You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request is pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence."

" Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.)"

Canadian
09-03-2012, 09:23 PM
Thanks for the input guys, i'm actually not an EWI...i came on a B2 and overstayed. Does this change the situation?

MaskedLuchador
09-03-2012, 09:33 PM
Thanks for the input guys, i'm actually not an EWI...i came on a B2 and overstayed. Does this change the situation?

Well, if you came into the US with a visa then you wouldn't have to exit the US should you choose to adjust through marriage.