Since my I-94 has expired and my I-130 is pending, am I on a wrong stand and what other options do I have? - Immigration Law Questions and Answers- LawQA.com

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Since my I-94 has expired and my I-130 is pending, am I on a wrong stand and what other options do I have?

I arrived in the United States last November 2012 with a b2 medical visa. My visa is still valid but my I-94 was valid for 6 months which actually expired last May. My mother who is a lawful permanent resident chose to file I-130 citing that it would be better for me to stay here to continue with my treatment which is still very much ongoing as doctors in my country can’t handle me well. My condition is a serious one categorically in medical conditions.

Law Offices of Svetlana Boukhny
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You are now out of status and accruing unlawful presence. Unfortunately, once you are unlawfully present for 180 days, if you depart the US, you will be barred from reentry for 3 years; if you are unlawfully present for 1 years, if you depart, you will be barred for 10 years from reentering. The fact that your mother petitioned for you through the I-130 is good but even when the priority date becomes current for that application and you would be eligible for a green card, you will not be able to get it because you are in the US unlawfully. Your only recourse for legalizing your status within the US once you are unlawfully present is through a bona fide marriage to a US citizen. Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

Answer Applies to: California
Replied: 7/15/2013


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Because your I-94 card has expired, you are technically out of status. You could have extended your visitor's visa for an additional 6 months with a letter from your doctor explaining your treatment. That would have allowed you to remain in lawful status while USCIS adjudicates your I-130 petition. The pending I-130 petition, once approved, merely establishes your eligibility for an immigrant visa based upon your relationship to your mother. It does not provide any status to you. In August, the F-2A category in which you fall becomes current. Therefore, you will be able to file your adjustment application at that time.

Answer Applies to: Minnesota
Replied: 7/9/2013

Answer By Bruce Coane
Coane and Associates
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If you are a minor child and you're mom is a USA citizen, that isn't exactly the correct thing to do, but it's a start. If you are 21 or over or if she is not a USA citizen, then generally speaking, you are now considered illegally here.

Answer Applies to: Texas
Replied: 7/9/2013

Answer By Eric Fisher

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You should have applied for an extension of your B2 visa before the I-94 expiration date. The filing of an I-130 by your mother will not give you legal status. You should consult an immigration attorney.

Answer Applies to: Colorado
Replied: 7/9/2013

Answer By Alena Shautsova
Alena Shautsova
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You are out of status and accumulating unlawful presence. I 130 does not give you a legal basis to stay in the US. As for the options, you should meet with an attorney to discuss.

Answer Applies to: New York
Replied: 7/9/2013

Answer By Alexander Segal
Law Offices of Grinberg and Segal
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You have not proceeded properly. You should have requested an extension of your status. You are accruing unlawful presence and a pending I-130 will not shield you from this. You need to speak to an experienced immigration attorney ASAP.

Answer Applies to: New York
Replied: 7/9/2013


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Once the date of your I-94 period expired, you fell out of status. If you were over 21 years when your mother filed your I-130, your petition is in the F2B category, [unmarried adult child over 21 of an LPR]. A visa in that category will not become current for about 8 years. By way of comparison, a visa in that category which is now current was filed Nov 2005. If your mother becomes a US citizen, the petition is then reclassified into F-1 [unmarried adult daughter of a US citizen] Your reclassified reduces your wait time by only a few months. Note that filing a petition gives you no right to remain in the country nor does your unfortunate medical situation.

Answer Applies to: New York
Replied: 7/9/2013

Answer By Jesse Brar

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Since your I-94 has expired (i.e., your B2 status has expired), you are out of status, even if your initial visa hasn't expired (the visa is only for applying for entry into the U.S., it's the stay in the U.S. on your I-94 that determines your status in the U.S.). You mentioned that your Permanent Resident mother has filed an I-130 petition for you, In your question, you didn't mention your age, which is important, because it would determine under which preference category your petition falls . Also, you didn't mention which country you are from, because the priority date in each preference category depends on which country you are from. All of this is only important if for example, you are under 21 and your mother has a way to become a U.S. citizen, so that you could become an "immediate relative" under immigration law. For a person who is *not *an immediate relative (e.g., son or daughter of a permanent resident over 21 years of age), to file an application for adjustment of status ("Greencard"), that person must be in status, and must not have been out of status at any point of their stay in the U.S. For immediate relatives (that is spouse, child under 21 years of age, or a parent, of a U.S. citizen), there is an exception to this rule. That is, a person who is an immediate relative, that person can file for adjustment of status even if they are out status. So in your case, it's important to determine if you can qualify as an immediate relative, otherwise you would not be eligible to file an application for adjustment of status.

Answer Applies to: Utah
Replied: 7/9/2013

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