Adjusting the Status of a Minor Child Born Prior to Parents' LPR Status

[grunf]

Hi.
Current status:
My wife and me, we are Green Card holders. Our daughter was born outside of the US (overseas) before we became LPRs and she lives with us in the US. We are Canadian citizens so our daughter is in the USA based on a B2 visa.

Action: We are going to apply to adjust her status because she was born before we obtained LPR status.

Questions:

1) Since we currently live in the US we are preparing to submit a I-485 and I-824, based on the requirements stated in "Bringing Children, Sons and Daughters to Live in the United States as Permanent Residents". Is this interpretation correct?

2) From I-485 Instructions we see that we need to provide criminal records for our daughter. Since she was born on 2007 do we need to submit these documents?

3) In addition, she was born overseas (we lived in several countries in the last 3 years due to the nature of my work) and she has a Canadian citizenship, so I am not sure if we need to ask for her criminal history from all of the countries that we've lived in with her.

Thanks for the answer(s) i advance

Grunf

[T53147]

Has your child's I-94 expired? If so, when?

[grunf]

Her I-94 expires on June 2nd, 2011.

[T53147]

How did you obtain your green card - Employment? Family? Why was she not added to your petition since she was born during the wait for a priority date? Was an attorney used for this filing? What is the start date of your residency?

You do realize that the current priority date for the minor child of a LPR is 8 June 2007 except Mexico which is 1 Jan 2007 . She cannot be illegally present (overstay the date on the I-94) and be able to adjust status; forgiveness for an illegal overstay is not granted to LPR sponsored immediate family members as it is for those of US citizens. She would be required to leave the US and remain outside (since she would not qualify for a visit visa with immigrant intent) until the priority date becomes current. Filing the paperwork goes not grant her the right to remain illegally.

Your problems are far greater than police certificates given the wait for a priority date and the expiration of her I-94.

I believe that your best option is to see an immigration attorney for a review of your earlier filings.

[grunf]

Thanks, I will talk to an attorney. By the way, when we entered the US last time (when she obtain her I-94) they told us there is enough time for her to apply for an adjustment and to extend her stay.

Anyway, I will get in touch with an attorney.

[T53147]

Not long ago, the priority dates for individuals in your daughter's situation resulted in a very short wait; a couple of months ago it returned to about a 4 year wait. The attorney's analysis at the time was likely correct. He should have warned you that the dates may move both forward and backward - frustrating, I know.

[cyberguru]

Your daughter qualifies for "Following-to-Join Benefits" as described below (taken from USCIS site):

If you were married and/or had children who did not obtain permanent residence at the same time you did, they may be eligible for follow-to-join benefits. This means that you do not have to submit a separate Form I-130 for your spouse and/or children. In addition, your spouse and/or children will not have to wait any extra time for a visa number to become available. In this case, you may simply notify a U.S. consulate that you are a permanent resident so that your spouse and/or children can apply for an immigrant visa.

Your spouse and/or children may be eligible for following-to-join benefits if:

* The relationship existed at the time you became a permanent resident and still exists, AND
* You received an immigrant visa or adjusted status in a preference category.

If your family member falls into this category and you adjusted to permanent residency in the United States, you may submit the following:

* Form I-824, Application for Action on an Approved Application or Petition
* A copy of the original application or petition that you used to apply for immigrant status
* A copy of Form I-797, Notice of Action, for the original application or petition
* A copy of your Form I-551 (green card)

If you are in the United States and have not yet filed to adjust your status to permanent resident, you can file Form I-824 with your Form I-485, in which case no supporting documents are needed other than those submitted with Form I-485.

If you received the immigrant visa overseas, you may contact the National Visa Center (NVC) for follow-to-join information.

Always verify any information you receive (including information/advice from a lawyer) with the USCIS website. If possible, visit a local USCIS field office and verify information with a (senior/experienced) immigration officer. Lawyers do not know everything, and do not always give the best advice. I personally qualified for follow-to-join benefits, but my parents' lawyer advised them incorrectly. He had them file a separate petition for me, which only wasted 6 years of my life waiting for an immigrant visa abroad. I hope this doesn't happen to your daughter.

Adjustment of status is a long process which takes several months. One course of action is to file Form I-824 to notify the nearest US consulate in Canada regarding your approval, and then make an appointment for an immigrant visa for your daughter at that consulate. You'll want to do this before her I-94 expires on June 2, 2011 (or let her depart the US and return with a new I-94). Take your green cards and proof of relationship with your child to the consulate. After she receives her immigrant visa, she can then enter the US as a permanent resident.