Experienced Family Immigration Lawyer in San Jose and Silicon Valley


Family Sponsored Green Cards:  Petitions from US citizens or Permanent Resident relatives

At the immigration and naturalization law firm of Muston & Jack, P.C., we help people secure US immigration status for immediate family members and other relatives. As a result of our lawyers’ success in these matters, our firm has built an outstanding reputation and is recognized for the quality of both our work and our client service.

The relative immigrant petition, together with either adjustment of status (AOS)  or consular processing, are immigration processes to obtain green cards for direct relatives of US Citizens and Permanent US Residents. Relatives that immigration classifies as “immediate relatives” may generally apply for the green card (permanent residency) right away, whereas petitions for other relatives are divided into categories based on the particular relationship and must wait for a visa to become available before they may apply for the green card. “Immediate relatives” are spouses of US citizens; parents of US citizens, if the US citizen is age 21 or older; children of US citizens, if the children are under age 21 and unmarried; and widows/widowers of US citizens, under certain circumstances.

Relatives who are not “immediate relatives,” yet who are still eligible for a green card through a relative petition include:  adult children of US citizens, spouses and children of Lawful Permanent Residents (green card holders), and siblings of adult US citizens. Unlike “immediate relatives,” these other relatives are divided into categories based on the particular relationship, and they must wait for a visa to become available for their category. The Department of State publishes the “Visa Bulletin” each month, letting applicants know when they may apply for the green card.

Immediate Relatives

K1 Marriage Visa

K1 Fiancé Visa and K3 Marriage Visa: Immigrant petition for a foreign fiancé or spouse

Even under ideal circumstances, getting married requires a great deal of planning and effort. Marriage between a U.S. citizen and a foreign national requires more. If you are currently engaged to a citizen of a foreign nation, minimize any unnecessary delays and talk to an experienced immigration lawyer long before you actually plan to marry.

At MJ Law, we have helped hundreds of individuals to obtain K-1 fiancée visas. Immigration is the only type of law we practice and our experience with all aspects of it can make a tremendous difference for you.

The following information is intended to provide you with general information about the K1 Fiance visa. For answers to other questions or to discuss your specific situation contact us directly to schedule a consultation.

WHAT IS THE K1 FIANCÉ VISA?

The purpose of the K1 Fiancé visa is to bring the fiance/fiancee of a US Citizen to the United States so they can get married here, instead of forcing the US Citizen to travel to the foreign country just to get married.

THE ADVANTAGES OF THE K1 FIANCÉ VISA OVER GETTING MARRIED FIRST ARE:

  • The consular processing of a K1 fiancé visa is faster than the processing of a spouse visa. A fiancé typically has the interview within 8 to 10 months as opposed to 12 months for a spouse. (Note that these times are subject to change based on the consulate’s caseload and other factors.) Many times, the main consideration is to get the person in the US as fast as possible so the couple can be together.
  • The US Citizen doesn’t have to go to the foreign country just to get married and come right back. He/She may not have the money or the time to travel.
  • If the US Citizen got political asylum previously, he or she may no be able to travel to that country to get married, and many countries have restrictions on non-residents getting married there.

The K1 process itself is complicated. In a nutshell, the process is to first file the fiancé case with the USCIS. Then the case will be transferred to the NVC and finally to the selected consulate abroad.. After the consular interview, which can only be done in consulates or embassies that handle permanent residence interviews, the beneficiary (foreign national) is given the K1 Fiancé visa and six months time to enter the US. The beneficiary then has to get married within 90 days of his/her arrival.

Now, if the couple decides not to get married, the foreign national cannot change status to any other type of non-immigrant visa or do an adjustment of status within the US, except through the person that originally filed the K1 Fiancé visa petition. That means that if the couple does not get married within 90 days of the foreign national’s arrival, the foreign national must depart the United States.

The fiancé can marry a different US citizen, but he/she will have to leave the US and have another consular interview in order to return to the US. The same restriction applies to K2 visas for unmarried children under 21 who can accompany the parent to the US.

If the couple gets married as planned, we then prepare and file the adjustment of status (green card) case. At that time we can apply for an employment authorization card to allow the foreign national to work, and an advanced parole document to allow him/her to travel outside the US while they are awaiting the adjustment of status interview.  Another thing to keep in mind is that if someone is getting residence through a spouse and on the date the case is approved (which is often the date of the interview) the beneficiary has been married for less than 2 years, he/she will get a conditional resident card, not the 10 year permanent resident card.

I-751: REMOVAL OF CONDITIONS FOR THE 2 YEAR CONDITIONAL GREEN CARD

The couple will need to file a form I-751 (Removal of Conditions) near the end of the 2 years in order for the foreign spouse to keep his/her status as a Lawful Permanent Resident. . Any accompanying children will get the 2 year conditional resident card too, and if the restriction is removed on the parent’s residency, it will also be removed on the children’s one.

If you do everything properly, there will be no interruption in your ability to work and travel during this transition. If you do not file the I-751 on time, the USCIS will typically send you a Notice to Appear (NTA) putting you in removal (deportation) proceedings. You never want to see one of those letters!

HOW TO GET THE K1 FIANCÉ VISA:

The K1 Fiancé visa process is rather long and arduous. However, we would be happy to see you and your fiancé(e) through the process and make sure that things go as smoothly as possible. Mishandling of the K1 fiancé visa application may result in lost time, visa denials or arrest and deportation of the fiancé(e) where the USCIS suspects fraud.

US citizens who will be getting married to a foreign national in the United States may petition for a fiancé classification (K1) for their fiancé. You and your fiancé must be free to marry. This means that both of you are unmarried, or that any previous marriages have ended through divorce, annulment or death. You must also have met with your fiancé in person within the last two years before filing for the fiancé visa. This requirement can be waived only if meeting your fiancé in person would violate long-established customs, or if meeting your fiancé would create extreme hardship for you. You and your fiancé must marry within 90 days of your fiancé entering the United States.

You may also apply to bring your fiancé’s unmarried children, who are under age 21, to the United States.

ADOPTED CHILDREN

Before filing an I-130 relative petition for permanent residence for an adopted child, the US Citizen or Permanent Resident must meet the following two conditions:

  • The child must have been adopted before he/she was 16 years old, and
  • The petitioner must have had at least 2 years actual physical as well as legal custody of the adopted child.

This means that if you go to a foreign country to adopt a child, you have to somehow get the child to the US and get the 2 years actual physical custody here, unless you either are willing to go to the foreign country and get the 2 years actual custody or unless you have had at least 2 years actual custody of the child sometime in the past and you can prove it. The 2 year actual custody can be before you got the legal custody.

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures for your particular case. As a client, you will receive personal attention and work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.


Green Card for Spouse of a US Citizen

I-130 and AOS: Adjustment of status for spouse and children of a US resident

FAMILY PETITION: SECOND PREFERENCE > SPOUSE / CHILDREN OF US PERMANENT RESIDENTS (LPR)

Any permanent resident (or conditional resident) can file for an I-130 petition for permanent residence for their spouse and unmarried children. This is the family sponsored second preference. Spouses and unmarried children under 21 are F2A preference, and unmarried children over 21 are F2B preference.
AVAILABLE VISAS FOR F2A:

The worldwide quota for F2A available petitions is 87,934 per year.

AVAILABLE VISAS FOR F2B:

the quota for F2B available petitions is 26,266 per year. Because there are more people applying than the number of visas available on these categories, there are substantial waiting lists.

Any unmarried children under 21 years old can accompany the principal beneficiary. If the principal beneficiary entered the US legally and remained legally until the priority date is reached, he/she can have an adjustment of status (AOS) in the local USCIS office within the US. If not, then he/she and their dependents must travel to their country of origin and have a consular interview there.

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 245(i), 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 245(i), 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 245(i) and as such could theoretically accompanied the principal beneficiary on that case that was filed before May 1st, 2001, you can use Section 245(i) 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 245(i) 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 245(i).

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service). As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.


Green Card for Parents of U.S. Citizens

Green Card for parents of a US citizen

A US Citizen must be at least 21 years old to file an I-130 petition for permanent residence for their parents. If the parent entered the US legally, he/she can do an adjustment of status with the local immigration service center (CIS). The parent of a US citizen does not have to have been in legal status here the entire time. The Immigrant petition for parents of a US Citizen has no numerical limits and grants the permanent resident status for the Mother and Father of the US Citizen.

If filing for an adjustment of status, the parents can apply for an employment authorization card and under certain circumstances, a permit to travel out of the US while awaiting the adjustment interview. Consult with an immigration attorney before filing for the travel permit, commonly known as “Advanced Parole”.

If the parents are not present in the US, they will have their interview in the US consulate or embassy in their country.

HOW LONG DOES IT TAKE IF THE PARENTS ARE OUTSIDE THE US?

This process takes about one year in most consulates.

Because of the rule that says than an immediate relative cannot be accompanied by anyone else on their petition, in this type of case the under 21 year old unmarried children of the parent cannot get residence along with the parent. The US Citizen child will have to file for his/her siblings separately of the parent can file for their other unmarried children when they receive their own permanent residence.

If the father was not married to the mother of the child on the date the child (now a US citizen) was born, extra documentation in addition to the child’s birth certificate needs to be submitted even if the gift certificate shows him as the father of the child. If the child’s birth certificate does not show the last name of the mother, as happens in certain Islamic countries such as Iran and Pakistan, we need to show that on the date the child was born, the mother was married to the father was has given his last name to the child. Speaking of Islamic countries, USCIS does not recognize any marriage entered into while the spouse was still married to someone else.

In other words, the US does not recognize second or third wives, although they may be legally married to the same man at the same time in certain Islamic countries.

The US citizen petitioner needs to do an affidavit of support to show that the beneficiary will not become a public charge. One thing to note is that anyone doing an affidavit of support for a permanent resident case must be actually residing in the US at the time the affidavit of support is submitted and theoretically when the consular case is approved. Therefore, children born in the US but residing in another country will need to move back earlier to the US and live in the US in order to apply for their parents. This is a requirement for all petitions of relative petitioners.

SECTION 245I AND THE 3 YEAR / 10 YEAR BAN RULE

If the alien parents entered the US without inspection (illegally, without passport and/or visa) as a general rule (except for Section 245(i)) they will have to return to the native country and have the interview at the US Embassy or Consulate there.

Now, the problem with having a consular case for persons who have remained in the US in unlawful status for more than 180 days after the age of 18 and after April 1st 1997 and they leave before the US permanent residence case is approved, then they will be banned to return to the US for 3 years. If the person remained unlawfully in the US for a whole year or more, then he/she will be banned of returning to the US for 10 years.

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 245(i), 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 245(i) and as such could theoretically accompanied the principal beneficiary on that case that was filed before May 1st, 2001, you can use Section 245(i) 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 245(i) 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 245(i).

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service). As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.

F1, F2, F3, F4

F1: Green Card for Unmarried Sons or Daughters of a U.S. Citizen

Green Card for unmarried sons and daughters of a US citizen

FAMILY PETITION: FIRST PREFERENCE > UNMARRIED SONS OR DAUGHTERS OF A US CITIZEN

A US Citizen can file an I-130 family petition for permanent residence for his/her 21 years or older, unmarried son(s) or daughter(s).

This is Family Sponsored first preference. If the beneficiary marries before arriving to the US, he/she converts to Family Sponsored third preference: Married children of US Citizens, which has a larger waiting list for most countries.

By law, the US can admit only 23,400 beneficiaries plus their unmarried children under 21, if any, per year. So, there is a substantial waiting list in this category. Any married, under 21 years old children, can accompany the principal beneficiary.

The US citizen petitioner needs to do an affidavit of support to show that the beneficiary will not become a public charge. One thing to note is that anyone doing an affidavit of support for a permanent resident case must be actually residing in the US at the time the affidavit of support is submitted and theoretically when the consular case is approved. Therefore, US Citizens residing in another country will need to move back earlier to the US and live in the US in order to apply for their relatives. This is a requirement for all petitions of relative petitioners.

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 245(i), 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.

CHILD STATUS PROTECTION ACT

In non-immediate relative cases, the single under 21 year old children can go along with the parents.

The Child Status Protection Act makes it possible in many cases to bring along the unmarried children even though they turned 21 years old before the priority date was reached. Talk to the immigration attorney about this issue if the children will or have turned 21 years old.

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 245(i), 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 245(i) and as such could theoretically accompanied the principal beneficiary on that case that was filed before May 1st, 2001, you can use Section 245(i) 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 245(i) 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 245(i).

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service). As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.


F2A: Green Card for Spouses and Unmarried children under 21 years of U.S. Permanent Residents

I-130 and AOS: Adjustment of status for spouse and children of a US resident

FAMILY PETITION: SECOND PREFERENCE > SPOUSE / CHILDREN OF US PERMANTENT RESIDENTS (LPR)

Any permanent resident (or conditional resident) can file for an I-130 petition for permanent residence for their spouse and unmarried children. This is the family sponsored second preference. Spouses and unmarried children under 21 are F2A preference, and unmarried children over 21 are F2B preference.

AVAILABLE VISAS FOR F2A:

The worldwide quota for F2A available petitions is 87,934 per year.

AVAILABLE VISAS FOR F2B:

the quota for F2B available petitions is 26,266 per year. Because there are more people applying than the number of visas available on these categories, there are substantial waiting lists.

Any unmarried children under 21 years old can accompany the principal beneficiary. If the principal beneficiary entered the US legally and remained legally until the priority date is reached, he/she can have an adjustment of status (AOS) in the local USCIS office within the US. If not, then he/she and their dependents must travel to their country of origin and have a consular interview there.

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.

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service). As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.


F2B: Green cards for Unmarried sons and daughters over age 21 of U.S. Permanent Residents


F3: Green Card for Married sons or daughters of a U.S. Citizen

Green Card for married sons and daughters of a US citizen

IMMIGRANT PETITION FOR MARRIED CHILDREN OF US CITIZENS

Any US Citizen at least 21 years old, can file an I-130 family petition for permanent residence for their married children.
This is the Family Sponsored third preference. The worldwide quota in this category is 23,400 visas available per year. Because many more people are applying than the number of yearly available visas, there is a substantial waiting time for the case to be processed.

Any spouse or unmarried children under 21 years can accompany the principal beneficiary on this case. If the beneficiary entered the US legally and remained here legally until the priority date is reached, he/she can adjust their status (AOS) to permanent residence in a local USCIS office in the US.

If not, then they need to travel to their home country to have a consular interview there.

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.

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service). As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.


F4: Green Card for Brothers and Sisters of a U.S. Citizen

Green card for brothers and sisters of a US citizen

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.

“Helping you to obtain the right visa, when you need it”

When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service). As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.


Helping You to Obtain the Right Visa When You Need It

When you contact our firm for an initial consultation, we will take the time to educate you and explain the immigration laws, regulations and the visa application procedures of the USCIS (U.S. Citizenship and Immigration Services, formerly known as the INS or Immigration and Naturalization Service).

As a client, you will work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.


“We are very pleased!”

“Gabriel Jack helped us apply for an O-1 Visa, when we needed to change visa status and we got it!”

Denmark Flag Birgitte A, Denmark

“Easy to deal with”

“My E3 was approved with no trouble at all…and he’s a really nice person, which is a good bonus.”

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Schedule Your Immigration Consultation Today

Wherever you are, you can trust the attorneys at MJ Law to help you with your US immigration needs. Contact us today by calling 408-293-2026.

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1625 The Alameda, Suite 315
San Jose, CA 95126
(408) 293-2026

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