My 7-year-old son overstayed his B1 visa. Will he be denied a green card?

Question

Hi,

My girlfriend took our 7 year old son from Jamaica to the U.S. last year and decided to stay after she got there. My son has as a result overstayed his B1 visa.

My mother, a green card holder, has filed for me and has included my son on the I-130 petition. Will the fact that my son has overstayed his time result in him being denied a green card when it comes time to adjust status?

Any guidance will be greatly appreciated.

thanks
mike

Hi,

Thought it might be useful to offer a short timeline of events:

March 2006 -- my mother files the I-130 petition, which has my son's name on it. It's approved by USCIS and priority date assigned.

August 2006 -- I quit my H1B employer after 4 years to study in the U.K.

December 2006 -- my girlfriend visits the U.S. with our son and overstays the one month time stamped in their passports.

Sept. 2007 -- I graduate and join a multinational company. I may be able to transfer back to the U.S. on an L1 visa

November 2007 -- My mother becomes eligible to file for citizenship and will do so


My question is when the time comes in 2010 or 2011 to adjust my status, will my son run into any problems? I want to know whether it makes sense to try to have him returned to Jamaica or whether I should just leave him in the U.S.?

Any further insights/thoughts appreciated.

thanks,
mike

Answer 1

Your son is 7 years old, it won't be held against him. It was not his decision to stay. An adjustment of status, I-485 which comes after the approval of the I-130, can be done with him staying in the US. Just as long as grandma included his name and used HER current address for him. Anyway, listen up. IF your Mom is applying for you and you are over 21 years old. it will take many years to get your green card. Suggest to her to become a naturalized citizen, it will cut down your wait time to months instead of years.Right now you are qualified for an F2B visa and they are at a chargeability date of may 2001. If she has already submitted the paperwork, once she gets a receipt number and she becomes a naturalized citizen, she can then contact either the State Dept. or the National Visa Center and change her status which would then change your chargeability from and F2B to and F1.
Edited: Since your mom becomes eligible in Sept of this year, if that is the 5 year mark, she can actually start the naturalization process at 4 years and 9 months. As of July 30,2007 fees will increase dramatically. For her to be a naturalized citizen the fees will go from $330 to $675 to become a resident will go from $325 to $1,010 for a child under 14 would be $600. Since your chargeability date will be sometime in 2006 , the fastest way would be to get your mother naturalized which takes about 18 months, then she can make the request to change you from an F2 petitioner to an F1. Tell her to check with an immigration atty, there are quite a few that do free consultations to see if she can file early to avoid the higher fees

Answer 2

Unfortunately, yes. This presents a problem. Generally, only immediate relatives (parents, spouses and children of US citizens) can successfully adjust status if they have overstayed a visa. There may be an exception available if any immigrant petition was filed for you son prior to Apr. 30, 2001 or if a petition or labor certification was filed for you prior to that date (your son would derive the benefit through you).

From your post, it sounds like you are still in Jamaica and will consular process when a visa becomes available. If your son is not eligible for the exception above, he will likely need to consular process also. If he were 18 yrs. or older, leaving the US could result in a 3 or 10 year bar to reentering (this is why some people are stuck here even though they have approved petitions. They can't adjust IN the US and if they leave to process at a consulate, they're barred from reentering for 3 or 10 years, depending on the length of the overstay).

Anyway, being under 18, your son is not subject to the bar. He can successfully consular process as a derivative of your mother's petition when a visa becomes available.

It's a very good idea to consult an immigration attorney who can more thoroughly evaluate your specific situation.

Answer 3

you are able to certainly be conscious to regulate your husband granting that this is a bona fide marriage. meaning which you the two entered into the marriage by using fact of love and not for the purpose of having immigration advantages (ie: green card). if that's the case then he would be deemed inadmissible and could be deported. If he has a criminal checklist he won't be waiting to regulate. you should no longer be waiting to document for his son. inspite of the shown fact that, the daddy might document for his son as quickly as he's adjusted to an eternal-everlasting resident and consequently getting his citizenship. once you regulate your husband he will in basic terms get a momentary-everlasting (2 twelve months green card) for which you will ought to document to do away with the situation on the marriage. talk with an immigration criminal expert on your section or touch USCIS for extra tips

Answer 4

it is not as strict for 7 year olds
good luck