Family Petition: 4th Preference > Brother/Sister of a US Citizen
A US Citizen must be at least 21 years old to file an I-130 petition for permanent residence for his/her brothers and sisters. This is the Family-Sponsored 4th preference. The age or marital status of the brother or sister does not matter.
The petitioner and beneficiary must have at least one parent in common to qualify. By law, the US can only accept 65,000 cases a year from the world in this category (and their derivatives, which are spouses and unmarried children under 21 years), so there is a long waiting list in this preference.
Child Status Protection Act
The general rule in this type of case is that spouses and unmarried children under 21 years old can accompany the principal beneficiary on the case. Normally, if the child turns 21 years old before the priority date is reached, the child is out of the case, but there is a law called the CSPA (Child Status Protection Act) that lets a child over 21 years old adjust status with the parent petitioner under certain circumstances. Talk to an immigration attorney about this issue if the accompanying children are close, or even 21 years old.
If the beneficiary entered the US legally and is still here legally at the time the priority date is reached, he/she can do and adjustment of status with the local immigration office instead of returning to their country of origin and having a consular interview. Otherwise, they will have to go back to their country or origin and have the consular interview there.
If filing for an adjustment of status (AOS) the beneficiary can apply for an employment authorization card (EAD) and travel permit (advance parole). However, if filing for adjustment of status utilizing Section 245i, after having been in unlawful status in the US for over 180 days after the age of 18 and after April 1st 1997, the beneficiary should never apply for an advanced parole.
Section 245i
Under certain circumstances, a person can have the final interview in the US without leaving and thus, will not be banned for 3 or 10 years. This law is called Section 245i, which says that a person had an approvable immigrant petition or a Labor Certification (PERM) filed on his/her behalf before May 1st, 2001, he/she can pay a penalty of $1,000 in addition to the normal USCIS filing fees and have their interview here in the US without returning to their native country.
If you can avoid leaving the US in the first place, you cannot be banned from returning. The Law says if you are the spouse or single under 21 years old child of a person who qualifies for Section 245i and as such could theoretically accompanied the principal beneficiary on that case that was filed before May 1st, 2001, you can use Section 245i too, If the case in question was filed after January 14, 1998, you have to show that you were physically present on or about December 22, 2000 when the last extension to the Section 245i law was passed. If your case was filed on January 14, 1998, or earlier, you don’t have to show physical presence. There are a lot of technical details about this law, so you need to have a consultation with an immigration lawyer to see if you qualify for Section 245i.
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