Q. Can my mother interview here for permanent residence? My mother came to the United States from Nigeria on a visitor’s visa. Immigration gave her six months to stay, but she stayed longer. I am a U.S. citizen, over age 21, and I want to petition for her.
- S., New York
A. Despite the fact that she overstayed, your mother can interview here for permanent residence. Because she qualifies as the immediate relative of a U.S. citizen, the U.S. Citizenship and Immigration Services (USCIS) will forgive her for being here unlawfully.
Whether a permanent residence applicant can interview here, the process called adjustment of status, is by far the most common question I receive from readers. In the family immigration categories, you qualify to adjust status if:
1. An immigration officer inspected you when you entered the U.S., you were never out of status, and you never worked without permission.
2. An immigration officer inspected you upon entry (even if you are now unlawfully in the U.S. and/or you worked without permission) and you are an “Immediate Relative of a U.S. citizen.” That category includes the spouse of a U.S. citizen, unmarried children under age 21 of U.S. citizens, the parents of U.S. citizens older than 21, and certain spouses of deceased U.S. citizens.
Certain categories of legal entrants cannot benefit from the above rules, including C, and D nonimmigrants, individuals in transit without a visa (TROVs) and K fianc/s who marry someone other than the U.S. citizen who petitioned to bring them to the U.S.
Under what many call the 245i grandfather clause, you can adjust status in a family or employment-based category if you pay a $1,000 filing penalty and,
1. A relative or employer filed papers for you on or before Jan. 14, 1998;
2. A relative or employer filed papers for you on or before April 30, 2001, AND you were in the U.S. on Dec. 21, 2000; or
3. You are the unmarried child under 21 or the spouse of a 245i-grandfathered individual.
Unclaimed by parents
Q. My parents immigrated to the United States but never claimed me. How can I get to the United States to study? I am a resident of Chandigarh City, India. I read your column online at the Daily News web site. I have also read your book, and it convinced me that one way or another I could achieve my goal of studying in the United States. When my parents immigrated to the United States, they left me behind. My mother is now a U.S. citizen; my dad is still a permanent resident. They have no interest in helping me. I am concerned that if I apply for a student visa, the U.S. consul here will deny it because I have parents living in the U.S.
- R., Chandigarh, India
A. I think that with some effort, you may be able to get a student visa. To get a student visa, you must prove that your primary residence is in India. And you must prove your intent to return upon completion of your studies.
Having both parents living in the United States may lead the U.S. consul in India to think you want to immigrate. To deal with this problem, prepare a statement explaining your relationship to your parents.
You will want to make clear that you are estranged from your parents. You should also emphasize any factors that may lead you to want to return to India upon completion of your studies. You will take the statement to the U.S. consulate when you apply for your student visa.
Your first step in getting F-1 status is to get accepted by a college or university. Then, the school will issue you form I-20 A-B/ID (Certificate of Eligibility for Nonimmigrant [F-1] Student Status - for Academic and Language Students). Note that as part of the process you will need to prove that you can live and study in the United States without working - though once here, you can work in limited circumstances.
To prove you don’t need to work, you’ll need either proof of your own resources or an affidavit of support from a close family member.
Allan Wernick is a lawyer and chair of the City University of New York Citizenship and Immigration Project. He is the author of “U.S. Immigration and Citizenship - Your Complete Guide, Revised 4th Edition.” Send questions and comments to Allan Wernick, Daily News, 450 West 33rd Street, New York, N.Y. 10001. Professor Wernick’s web site is www.allanwernick.com.
Allan Wernick’s Immigration column is reprinted from the Thursday, August 28 editions of the New York Daily News.
