Published on the World Journal Weekly on October 11, 2015


Q&A 1. 2.

Mother Wonders if Son Can Stay in U.S. Since She Has I-797 Approval

A mother asks:

I am a U.S. citizen and I filed an I-130 for my son in 8/2011.  Surprisingly, he got a B-2 visa in 1/2015 and he came to the U.S. to visit me in 2/2015.  He applied for a B-2 extension to 2/2016.

I got his 797 approval notice in the end of February 2015.  Since my son already has a 797 approval notice, can he stay in the U.S. and wait for the priority date to become current to adjust his status?  What procedure does he need to adjust status to green card?

Dear reader,

Assuming that your son is over the age of 21 and that you are applying for him as the unmarried son over the age of 21 of a U. S. citizen, the backlog is now over 7 years before he is allowed to immigrate. Since you filed for him in 2011, an approximate time for his final immigration is 2018. During the time of waiting, Immigration does not allow him to stay just because your petition is approved and you have the I-797 approval. To stay in the U. S legally, he must maintain some type of nonimmigrant status. Sometimes individuals manage to stay by becoming students holding F-1 status. Other times, they may be eligible for a long-term nonimmigrant status such as H-1B.

To further explore this, he should meet with an immigration lawyer who can explain his options to him. If he decides to stay in illegally in the U. S., he would not be able to adjust status to permanent residence in the States unless the law changes since current law does not allow persons in his category (F-1 1) to adjust if illegal unless they have the benefit of §245(i) in which the beneficiaries are allowed to adjust by paying a fine amount of $1000 if they are able to show that they had a labor certification or immigrant visa petition filed by April 30, 2001 and were physically present here on December 21, 2000. Returning overseas after being illegal for over one year would subject him to a 10 year bar on reentry under current law.

Q&A 2.

F-1 Student is Stuck Overseas Trying to Get His Visa Renewed and Wants to Know What Else He Can Do to Return to U. S.

I am a graduate student from China who initially came for my bachelor studies. I went home in December when the school had a break, and my application for a new F-1 visa has been pending since January. I made a bunch of inquiries by myself and the school contacted the local congressional representative to help out. All that we got is a reply that my visa application is undergoing routine administrative processing. How can I expedite the process? Can an attorney help me?

Dear reader,

Your case illustrates the various things that can happen when people go back overseas for a US non-immigrant visa, even for an extension of one. There is unfortunately no magic way to make a US consulate produce the visa soon when it says that a person's case is undergoing administrative processing. Your making numerous requests through email and also through a US senator's office is helpful. You can of course continue with what you are doing and communicate with both the visa office in Washington and the home consulate. An attorney can help in constantly reminding the government that your case is unresolved and putting pressure on the consulate and State Department. Hopefully you will obtain a result soon.


Copyright © 2003-2017 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.


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