Legal Question in Immigration Law in New York

immigration (I-130 petition

Hello, I am 22 years old, I reside in Bronx, New York. I grew up in the U.S. since I was four. I am originally from Trinidad and Tobago, West Indies. I recently graduated from John Jay College. My father filed an I-130 for me in 2001 as a permenant resident filing for a child under 21. However, now it is 5 and a half years later and he now has his citizenship but I am over 21. I came here in 1989 when in I was 4 (on my mothers visa because I was too young) so obviously my visa has expired. I have spoken to a few immigration lawyers and they have advised me that I should leave the country in order to get my papers and then return later. However, this is not an option for me since I am supposed to be taking the LSAT in september to go to law school. I need to know if there is anything I can do. I was wondering if my father could start the process over, file for me again as a citizen filing for an unmarried child over 21 but I need some advice. I hope I provided enough info, thank you.


Asked on 4/04/07, 11:08 am

2 Answers from Attorneys
Carolyn Goldfarb Carolyn S. Goldfarb, Esq.

Re: immigration (I-130 petition

You haven't provided enough info. When in 2001 did your father file the I-130? Was it on or before April 30, 2001? If so, you would be grandfathered under what is called 245i. If so, you can adjust your status to lawful permanent residence when the priorty date becomes current. If not, the only way you can obtain lawful permanent residence is if you consular process. However, by departing the US, you would be barred for 10 years from returning because of for your unlawful presence unless you receive a pardon. To obtain this waiver or pardon, you would have to show exterme hardship to your USC parent, which would not be easy to do. Filing a new I-130 petition doesn't help you. The classification from LPR to USC can be automatically converted upon notification to the NVC. Exactly when your father filed, is the key to whether you have an immediate solution to your problem. You might need Comprehensive Immigration Reform like STRIVE or the Dream Act to solve your problem. Or, if you have a bona fide loving relationship with a USC and marry and have entered the US with a legal visa and can prove that, you would be able to adjust your status in the US.

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Answered on 4/04/07, 12:13 pm
William Frenkel Frenkel Sukhman LLP

Re: immigration (I-130 petition

I would also need additional data from you but think you may have relief under the Child Status Protection Act, which under the right circumstances "freezes" the age of the beneficiary child on the date the child's petitioner parent naturalizes.

This has effect of converting your father's petition from the second preference to the "Immediate Relative" for which visa numbers are always available. More importantly, beneficiaries of immediate relative petitions may adjust their status in the U.S. without having to depart despite being out of status. Note that if you depart now and you indeed have been out of status since 1997, you will be subject to a 10 year ban on admission back to the U.S.

Consult an immigration attorney to get legal advice for your specific situation: your entire immigration history must be reviewed to get the answer whether you qualify for the treatment I outlined above.

The above reply is in the nature of general information, is not legal advice and should not be relied on as such.

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Answered on 4/05/07, 7:18 pm


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