Legal Question in Immigration Law in Illinois

QUESTIONS-

1. Is it advisable to apply for visa of Principle Applicant along with children except a spouse or Is it advisable to keep it pending till the other siblings of petitioners get visa and reach US?

2. Can we put this immigration file pending at NVC? or Do we need to send DS forms including sponsor papers at NVC and once interview date is fixed, we should put it pending by informing at VFS? If we do not take any action then will this immigration file get cancelled automatically by NVC?

3. Will the status of spouse create any issue for the other siblings of the petitioners or the petitioner?

4. Can we take financial sponsor of anyone from US or we need to take sponsor of a petitioner only?

F4 CATEGORY

Petition filed date- November 2001

Current cut off date- August 2001

Dates became current in October 2010 and then retrograded.

CURRENT STATUS-

Principal Applicant- In India, holding US visitors visa since November 2008, visited US once in May 2009 and stayed there for around 2 months and came back India in June 2009.

Child 1-Working at US on H-1 visa status- CSPA age is 20 years and 9 months

Child 2- In India- CSPA age is 19 years

Spouse-Illegally entered US and staying in US on illegal status

Affidavit of support (AOS) Fees Paid $ 88.00

IV Application processing fees-

Principle Applicant- 404$ Paid

Child 1- 404$ Paid

Child 2- 404$ Paid

Spouse-230$ Not Paid

Last communication with NVC was in January 2011 and then the dates retrograded. No contact with NVC after that.

SPOUSE OF PRINCIPLE APPLICANT-

Illegally staying at United States, No record with INS, Have tried to apply but denied.

Applied for work permit in May 2005 and gave finger prints and biometrics in June 2005, Applied for social in October 2005.

Applied for temporary resident in September 2006 but failed to be present on that day and time, Application denied in January 2007.

As per paper work done, Spouse entered US in May 1981, came India in October 1987, Went back to US in November 1987 and staying at US till current date.


Asked on 10/31/13, 3:23 pm

1 Answer from Attorneys
Marlene Hemmings Marlene Hemmings, Attorney at Law

If the derivative beneficiary spouse is in the U.S. illegally & has accrued over 180 days of illegal presence, s/he will not be eligible to apply for adjustment of status &, if/when s/he departs the U.S., will be barred from re-entering for 3/10 years & thus will be ineligible for an immigrant visa. However, if the principal beneficiary & the minor children under 21 are outside the U.S., have no bars to re-entry or inadmissibility issues, then I do not see an issue with them applying for their immigrant visas.

The NVC will contact you once your priority date becomes current.

The derivative beneficiary spouse does not have to apply for the immigrant visa, even if the DS forms have already been filed. His/her unlawful status should not affect the principal beneficiary's case. Each applicant's case will be adjudicated separately. If the principal applicant is not approved, then the derivative applicant's cases become irrelevant. If the principal beneficiary is approved, then each derivative beneficiary's case will be adjudicated at that time, & the spouse need not continue with his/her case at that time.

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Answered on 11/04/13, 9:29 am


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