Can my mother who is a citizen petition me when I reside in USA?

Hello,


Im asking for a friend! She is still married but will be getting a divorce soon but when she does, can she apply for a green card through her mother. She came here with ESTA (Electronic System Travel Authorization ) and is currently 38 yr old !!!!


Thanks

Yes, her mother can petition for her but unfortunately will have to wait at least 10 years before a visa is available for her category (F2B if unmarried) (F3 if single) and once a visa becomes available she will have to continue the process via the consulate/embassy in her home country and will be required to file a I601 waiver for her unlawful presence and will have to show proof of extreme hardship to her mother.

Will she have to leave the usa ?

Wrong on two accounts:
F1 is for unmarried sons and daughters of US citizens over 21. This includes divorcees, widows/widowers, and single-never married.
F3 is for married son and daughters of US citizens, regardless of age.

I-601 waiver is available ONLY to immediate relatives (parents, spouses, and unmarried children under 21) of US citizens. Since she's already way over 21 she does not qualify.


Unless your friend is covered under 245(i) she will not be able to get papers through her mother. In order to be covered under 245(i) she must've been a beneficiary (direct or derivative) of a sponsorship application filed before April 30th 2001.

Asking "for a friend" huh?

What do you mean by being a derivative beneficiary? If my father applied for his green card before April 2001, but didn't include my name in the application, does that mean I'm a beneficiary but just not a direct one?

Doesn't matter when your father applied for his green card, what matters is when the sponsorship application or labor certification was filed. Since he filed for a green card before April 2001, then the sponsorship application was also likely filed before April 2001.

However, the said application must've been in a category which allows children to also get green cards. These categories include the following:
F1 (unmarried sons and daughters of US citizens over 21 years old)
F2A (spouses and unmarried children under 21 of permanent residents)
F2B (unmarried sons and daughters over 21 of permanent residents)
F3 (married sons and daughters of US citizens of any age)
F4 (siblings of US citizens)
EB1 (aliens of extraordinary ability, outstanding professors and researches, and multinational executives)
EB2 (aliens possessing advance degrees or of exceptional ability)
EB3 (skilled workers, professionals, and other workers)
EB4 (various special employment categories)
EB5 (investors)

This does not include the following:
IR (Immediate relatives of US citizens, meaning parents, spouses, and children under 21)
DV (Diversity lottery visa)
Fiance Visa (K-1 non-immigrant)

So if your father got sponsored in any of the first list before April 30th 2001, and you were under 21 at the time that application was filed then you are covered under 245(i). In this case you will need to provide evidence of that petition existing at some point in time, as well as evidence of parent-child relationship. If the application was filed on or after January 15th 1998, you will also need to prove that your father was physically present in US on December 21st 2000.