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Echo1984 · Feb 4, 2011, 09:51 AM

I am asking this question for my boyfriend. He has been in the Unites States for 12 years and was originally from Brazil and has attended all of his schooling in public school systems since he arrived. His parents did not have the money to renew visas so they let his expire and now he is 18. He is trying to attend college but cannot receive any assistance due to being illegal. His father recently married a US citizen could this help in any way? What is the first step we need to take so that he can become legal again and work his way to citizenship?

We have researched online but don't even know where to start considering its expired he is now 18.

smoothy · Feb 4, 2011, 10:13 AM

Nope... he's not entitled to any help... he's an illegal. And now that he's an illegal... its far harder to become legal. His easiest path is to return to Brazil and apply from there. As long as he remains here his applications will most likely be rejected by the INS.

NYcityboy · Feb 4, 2011, 10:25 AM

Bad timing.

If he was under 18 at the time his father married the USC, then he would be a stepchild according to the INA. As such he could have applied for permanent residence at the same time as his father. The adjustment would be granted under section 245(a), as he entered lawfully; and the immigration violations are the overstay and probably unauthorized employment.

With the facts as stated. After his father gets PR, he can start the petition process with an FB-2A filing, but then the father will need to wait 3 more years to qualify for citizenship. By this time, the son will age out of the FB-2A, drop to FB-2B, but if the father gets his citizenship, the petition goes to FB-1 (unmarried adult child of USC).

Complex case based on the father because of the timeline.

He can still adjust status in the US if he marries a USC. This would be a more simple case.

Confirm all this with an experienced immigration attorney. Get a referral from AILA. Good luck.

Echo1984 · Feb 4, 2011, 11:06 AM

He has just turned 18 and then his father got married! He did enter legally but is now illegal. Is there anyway to obtain a visa or green card while still in the US?

lawanwadee · Feb 4, 2011, 05:09 PM

Agree that this is bad timing.

Please read NYcityboy's answer... and consult experiences immigration attorney.

NYcityboy · Feb 4, 2011, 07:08 PM

For more detail. He cannot adjust status with his father. He will need his father to be granted permanent residence, then the father can start the process for him.

The LPR father can file a petition for him as an FB-2A, but before the father is eligible for citizenship and is granted citizenship (approximately 3 years 3 months), the son will have turned 21 and "aged out" of the FB-2A, dropping to the FB-2B, then after father gets citizenship it upgrades to FB-1.

The problem is that FB-1 is still a preference category. As such, even when the priority date is current, he is not eligible to adjust status in the US with the 2 immigration violations. So, he needs to either (1) leave the US, file the IV with a waiver at the ARO or (2), file an IR petition, usually, marriage to a USC, which qualifies for a waiver of the violations under section 245(a).

I hope this makes sense. If not, you definitely need to consult with a experienced immigration attorney. The case and the law is fairly simple.