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Immigration Issues/adjustment of status for out of status brother

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Question
good evening, my question is as follow: I am a US citizen
and had petition my brother in june 2002, at that time my
brother enter the united states with a visitor visa but
overstay, his I-94 did not expire until december of 2002, I
recently receive a package from national visa center
explaining the process and that his visa is available, my
question is now that he is the united states will he be able
to adjust status, should I continue with this process, and
if there is a waiver that he could apply in order for him to
stay in the united states, he currently is married and has
US citizen kids...what are his chances of him adjusting
status in the united states.

thank you for your time on this matter

Answer
Hi,

Your brother cannot adjust status in the U.S. since he is not maintaining nonimmigrant visa status in the U.S. He will need to apply for an immigrant visa at a U.S. Consulate in his home country. A waiver of this requirement is not feasible.

However, if your brother departs the U.S. and applies for an immigrant visa at a U.S. Consulate abroad, he will be barred from entering the U.S. as he will be subject to the  10-year bar to entry based on unlawful presence in the U.S. for at least one year. There is no solution to this problem under the current laws, unfortunately, unless he has a U.S. citizen child who is 21 years of age or older, or a U.S. citizen spouse.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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