I 485 Green Card

Question:

I'm currently illegal here in the USA because my tourist visa expired months ago. My father will soon get his citizenship, which means the Green Card that I've been waiting for, will be accelerated once my father gets his citizenship. (I applied for my Green Card through my father when he had his Green Card). Basically, my question is, when my interview comes up for my Green Card, do I have to leave the USA and come back in with a valid tourist visa? Or can I stay here throughout the process?

Answer:

The expiration date of your tourist visa (the stamp or seal in the passport) is probably irrelevant.

What is the actual status indicated on your I-94? (It will be B-1, B-2, WB, or WT.) What is the expiration date on your I-94?

My father will soon get his citizenship, which means the Green Card

Did your father ever file Form I-130 on your behalf? If so, when (month and year)? If not, what is the basis of your immigration? How old are you? Did you file Form I-485?

I'm 24 years old, I was 19 when my father filed in my behalf. I'm pretty sure we did the I-130 and the I-485. Basically, I know that my priority date is 1996 and that right now they are processing 1993. But I've been told that once my father gets his citizenship, my priority date will be moved up and become current. By the way, I cant find my I-94, but I'm pretty sure it said WT on it. I know it expired months ago (at least 8 months), it was only good for 3 months. Any help would be appreciated. I really dont want to go back to my home country if I dont have to.

These are crucial questions: Did your father file Form I-130? If so, where, the INS Service Center or the INS district office? What proof exists that he filed it? Was it approved?

Did you file Form I-485? If so, where? What proof exists that you filed it? Did you obtain advance parole? Did you leave the U.S. after filing Form I-485?

I have a feeling that you will need the services of a very good immigration attorney to resolve your case. You may have to file a FOIA (Freedom of Information Act) request to get information from the INS, if you and your father have misplaced necessary evidence. Also, you may have abandoned your I-485 by leaving the U.S. without advance parole, and the I-130 may remain unadjudicated at the INS district office.

I cant find all the paper work, but I do have a letter from the National Visa Center in Portsmouth, NH regarding my case. Basically it says I have a case pending. My preference category is F2B. My priority date is DEC/1996. My case number starts with the letters "PRS" then a bunch of numbers. Might the PRS mean adjust to Permanent Residency Status, aka I-485? Thats what I'm thinking. Right now I heard that they are processing 1998 applications for immediate relatives of US citizens, so I hope that means if/when my father becomes a citizen, my priority date of 1996 will be current. I will follow your lead and go see an attorney, but if you can clarify the PRS thing for me,

Because the approved I-130 is at the National Visa Center, you know that your father filed it at an INS Service Center by itself, with a request for consular immigrant visa processing. Only that type of I-130 gets to NVC.

PRS stands for Paris, which is the U.S. consular post at which you would appear if you were to complete the consular immigrant visa process.

However, you dare not leave the U.S. now. If you leave, you cannot return for 3 years, because you will become subject to the 3 year bar. See http://shusterman.com/245aila.html, http://www.shusterman.com/up-eos.html.

You will have to file Form I-485, together with the I-485 supplement for persons who have violated status. You will file an extra fee of $1000 to take advantage of INA 245(i), which allows you to file Form I-485 despite having violated status.

When your father filed the I-130, he asked to classify you in Family 2A, child (under 21 and unmarried) of a U.S. permanent resident. When you reached your 21st birthday, that petition was automatically converted from F2A to F2B, unmarried son or daughter (over 21) of a U.S. permanent resident.

When your father becomes a U.S. citizen, the petition will be automatically converted from F2B to F 1, unmarried son or daughter (over 21) of a U.S. citizen. For some reason, F1 has become unavailable for the month of August 2001. See http://travel.state.gov/visa_bulletin.html.

Usually F1 has a shorter waiting time than F2A or F2B, but something odd has happened. There will probably be a cutoff date established soon. See http://dosfan.lib.uic.edu/ERC/visa_bulletin/2001-07bulletin.html, which indicates an F1 cutoff date of January 1997, for the month of July 2001. [If your father had become a U.S. citizen earlier, you could have filed an I-485 during the month of July 2001.]

http://dosfan.lib.uic.edu/ERC/visa_bulletin/2001-07bulletin.html

One last thing. Is there anyway to change from the consular processing to the adjustement of status process? or is too late?

Riz, I am not sure how I could have been clearer. I wrote "you dare not leave the U.S. ... you will have to file Form I-485." Just because an immigrant petition requested consular processing does not mean it must remain consular processing through to the end. Luckily you qualify under 245i to file Form I-485, because consular processing would trigger the 3 year bar for you.