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 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.
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.
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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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.
For all of your legal immigration needs, contact the immigration lawyers of Muston & Jack, P.C., at our San Jose or Los Angeles California law offices to schedule an initial consultation.