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Cautionary Tale & FAQ on Basic Principles of U.S. Immigration Law

Posted by Shahzad Khan | Aug 01, 2022 | 0 Comments

I completed a consult not too long ago, where a prospective client informed me that they had filed an I-130 for their sibling. There was nothing wrong with that case and that case was pending normally with USCIS.  However, what they proceeded to explain is that they brought their sibling to the U.S. on a visit visa and attempted to extend their stay in the U.S., until such time it would be possible for the sibling to file for adjustment of status. They also tried to file file for adjustment of status under the mistaken assumption that since the sibling is in the U.S., they can apply for adjustment of status. They filed for extensions of the B-2 nonimmigrant status, but without the understanding that those extensions have to be filed before the prior period of stay completes.  The result was that sibling had spent the last several years in the United States without status and accumulating unlawful presence, such that if they left the U.S. today they would not be able to come back to the U.S. for a period of 10 years. 

Many mistakes were made here that could have been avoided. The sibling preference category (F4) is the most heavily backlogged preference category.  It has a backlog that spans about 15 years.  What that means is that if you file an I-130 for your sibling today, an immigrant visa for that sibling will not be available until about 15 years from now.   This also means that if the sibling is in the U.S., a lawful permanent resident (green card) card will not be issued  until 15 years have passed at which time the immigrant visa is available to adjust status.  I do not know where this comes from, but I have been asked this question many times "that because my sibling is in the U.S., can they adjust their status?" Well they can adjust their status if their priority date is current.  They cannot just adjust their status, just because they made it to the U.S. There are only certain handful of relatives that fall into a category known as the immediate relative category that can adjust their status if they are in the United States.  This category does not include siblings. 

What is provided below is a brief FAQ and very basic overview of key points that are essential to understanding the U.S. Immigration System. 

For immigration purposes, who are immediate relatives?  Immediate relatives include a spouse of a U.S. Citizen, a minor child under the age of 21 of a U.S. Citizen and parents of a U.S. Citizen.  If you fall within the immediate relative category, then you should know that an immigrant visa is always available to these people.  They just have to process their case, whether it is through adjustment of status in the U.S. or through consular processing at a U.S. embassy or consulate abroad. 

What are preference categories? Preference categories cover all other relatives who are eligible to seek immigration to the United States.  This can include unmarried adult children of green card holders, unmarried and married adult children of U.S. Citizens, spouses and minor children of green card holders and siblings.  There are no specific categories for nieces, nephews, cousins, etc. 

What is a priority date? When an immigrant petition is filed, the filing date of that petition becomes your priority date.  Think of the priority date as a date that establishes your place in line for an immigrant visa. Until you make it to the front of the line, you must wait.  Once you make it to the front of the line, this means that your priority date is current. 

What does it mean to have your priority date current? When a priority date becomes current that means that the visa is now available for the immigrant visa category under which the case was initially filed. With the visa being available, if you are outside the U.S. then you may be able to begin immigrant visa processing with the National Visa Center or you maybe called for an interview with the U.S. Consulate or Embassy in your home country to grant you the visa to the U.S. If you are in the U.S. and in lawful status (in most cases), then when your priority date becomes current you may be eligible to adjust your status from whatever nonimmigrant status you are in to that of a lawful permanent resident (green card holder). If you are in the U.S., and are not in status, you will not be able to adjust your status to that of a lawful permanent resident (green card holder), unless you are an immediate relative. 

How do you know that your priority date is current? You will need to check a publication known as the visa bulletin. The visa bulletin is published every month by the Department of State.  It usually is published by the 15th of the prior month.  It tells the public, immigration attorneys, immigration officers from the Department of State and the Department of Homeland Security of when visas are available for various family based and employment based categories. Since it is published about 15 days before the next month, it allows the public, attorneys and other immigration personal to plan for filings for the next month. 

I am in a nonimmigrant status, do I need to maintain that status to file for adjustment of status? Yes. In most cases, the answer is yes.  You must maintain your nonimmigrant status in order to be eligible to apply for adjustment of status in the U.S. Failing to maintain status is not a bar to adjustment of status for immediate relatives of a United States Citizen. However, for everyone else it is a bar. 

I am in the U.S. on a B-2 visitor visa, can I file for extensions of status until my priority date is current?  Realistically, no you cannot. The B-2 visitor visa is visa for a temporary visitor for pleasure or medical treatment.  The key word in that sentence is temporary.  You cannot park yourself in the U.S. on a B-2 visa and expect to extend your stay for the next fifteen years.  That is not going to happen.  USCIS will not allow it to happen. One or two extensions will be possible.  But, after that you will have to show some basis to remain in the U.S.  Your pending sibling immigrant petition or adult child immigrant petition will not be that basis. However, if you are here on a different status, such as an H1B, there is the potential for you to remain in the U.S. until such time that you can adjust your status in the United States.  

If you have questions, please contact our office at 972.961.3095 to schedule an appointment.  

About the Author

Shahzad Khan

Shahzad R. Khan is an accomplished attorney/litigator. He has over ten-years of experience in the practice of law in Immigration, domestic relations, estate planning, and corporate matters. He is experienced in civil litigation and an author of several published articles on family law issues. Ove...


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