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Immigration Issues/citizen parent sponsor after i245

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Question
Hi,I enter legally as a tourist to the USA back in 2000 and stayed, my mom became  US citizen in 2004, and she submit a i 130 petition for me, under the unmarried child over 21, I just received the i 798 approval noticed, waiting for visa number right now,do I need the i245 protection to submit my i485 adjustment of status in order to do it here in the united ?

Answer
Hello Rosa,

Only 3 kinds of I-130 beneficiaries do not need 245i in order to receive a green card in the United States after overstaying their visa status.  They are

1. Children (under 21) of US citizen
2. Spouse of US citizen
3. Parents of US citizen

The following I-130 beneficiaries must have 245i in order to receive the green card.  245i means the I-130 must be filed on or before April 30, 2001.

1. Children (above 21) of US citizen
2. Married children of US citizen
3. Brother and sister of US citizen

You must have 245i to receive the green card based on current law.  However, there are many years until the visa number becomes current, and the law may change before visa number becomes current.  For example, if Congress passes another 245i cut off and it's on a date after your I-130 was filed, then you will have 245i.  Based on the law right now, if your visa number becomes current today, you still cannot get a green card in the United States and must be processed from your home country, and you will need an I-601 waiver for your unlawful presence (illegal presence in the US).

Immigration Issues

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Jack Sung

Expertise

Can answer: Immigration and visa issues Can't answer: Everything else

Experience

Been a practicing immigration attorney for 4 years.

Organizations
Taiwanese American Lawyers Association. American Immigration Lawyers Association. Los Angeles County Bar Association

Publications
Southwestern International Law Journal

Education/Credentials
J.D. from Southwestern Univ. School of Law in 2007. Licensed attorney in California

Awards and Honors
LACBA 2011 Outstanding Public Service Award

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