QUESTION
Will DHS deny my petition for my father who overstayed with a working visa?
Asked on Apr 25th, 2013 on Immigration - California
More details to this question:
My father entered US legally with a work/employers visa in 1996. After his visa expired, he continued to stay and work up to the present. I am now a US citizen and planning to petition him using I-485 and I-130. Will DHS count against him his overstaying status and deny my petition for that reason?
10 ANSWERS
No, as long as he entered the US lawfully and can prove that lawful entry, he should be eligible for adjustment of status to permanent residence on the basis of you being his child and a US citizen.
Answered on May 03rd, 2013 at 3:30 AM
You have no choice but petition for your father anyway (if you want him to be here as an LPR). In the filing papers just be honest. You have another problem with your father: "he continued to work up to the present." Was he paying taxes? How could he work without authorization? You have a complicated case and will be better off by retaining an attorney.
Answered on Apr 26th, 2013 at 11:58 AM
It sounds like your father is protected under 245(i) which means he is allowed to stay in the US to complete his adjustment of status. However, when you file for him, you have to show his 245(i) protection/eligibility. There are numerous ways to do this. It is best to consult with an attorney first because if he turns out to be ineligible, DHS could refer him to court for deportation. Many of us offer free consultations, so you have nothing to lose.
Answered on Apr 26th, 2013 at 11:58 AM
Immigration Attorney serving Arlington, TX
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Law Office of Pho Ethan Tran, PLLC
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As long as you are a US citizen and there are no other potential issues of inadmissibility, USCIS will not deny his I-485 and I-130 because he overstayed his work visa.
Answered on Apr 26th, 2013 at 11:57 AM
Your father's petition will likely be approved.
Answered on Apr 26th, 2013 at 11:57 AM
Immigration Attorney serving Los Angeles, CA
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Law Offices of Mary Lyn T. Sanga A Professional Corporation
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Since your petition falls under Immediate Relative category, your father's previous overstay and unauthorized employment will not disqualify him from applying for adjustment of status. However, you should consult a lawyer before you proceed with the filing of the petition to make sure that he meets all the requirements for the petition and adjustment of status.
Answered on Apr 26th, 2013 at 4:52 AM
Robert E. West
Probably not unless he used fake documents to work and pretend he was a resident or citizen.
Answered on Apr 26th, 2013 at 12:05 AM
Immigration Attorney serving Van Nuys, CA
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Law Offices of Hussain & Gutierrez
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Your further is eligible to file for residency based on your petition the over stay will not affect him.
Answered on Apr 25th, 2013 at 11:40 PM
Criminal Defense Attorney serving Alhambra, CA
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Francis John Cowhig
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Yes, they can and his overstay will be a problem. However, he may qualify for a waiver. I suggest that you contact an experienced immigration attorney for a face-to-face consultation and give him/her all of the facts surrounding your father's situation. He/she would then be in a better position to analyze your case, advise you of your options and, if possible, make sure that the necessary paperwork and documentation is presented so as not to delay the process.
Answered on Apr 25th, 2013 at 11:40 PM
Immigration and Naturalization Attorney serving San Diego, CA
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Feldman Feldman & Associates, PC
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No he will be fine as he will be in the category called immediate relative. Immediate relatives do not need to show they maintained status only that they entered the U.S. legally when they came here. Now if he has gone home after accruing unlawful presence then you have a whole different case but if he hasn't left the U.S. since his status expired then he will be fine. If you need help with your case email me as indicated below and I will advise the procedure, timing and fees to represent you and him.
Answered on Apr 25th, 2013 at 11:34 PM