Petitioning overstaying non-immediate relatives could lead to deportation

by Atty. Emmanuel Samonte Tipon 

“Immediate relatives,” in immigration law, are the spouse, child (under 21), and parents of a U.S. citizen (USC). They are not subject to the numerical limits on immigrant visas under Immigration and Nationality Act (INA) § 201(b)(2)(A)(i). All others are non-immediate relatives, such as a USC’s adult unmarried child, adult married child, and brothers and sisters, and an LPR’s spouse, minor children, and adult unmarried children. They are subject to quota restrictions.

Petitioning by a USC for an  immediate relative who entered the U.S. on a nonimmigrant visa but stayed beyond the authorized period generally involves little risk of deportation because a visa is immediately available for such relative and the immediate relative can adjust status to lawful permanent resident. The only risk is where such immediate relative is ineligible to adjust status because such relative is ineligible for admission or is deportable for violation of the immigration laws.

On the other hand, petitioning by a USC or a Lawful Permanent Resident (LPR) for a non-immediate relative who entered the U.S. on a nonimmigrant visa but stayed beyond the authorized period generally involves a great risk of deportation. Generally, since there is no visa immediately available for such non-immediate relative, he/she cannot adjust status, unless the petition has been pending for a long time such that the priority date has been reached and a visa has become available.

Here is the danger of petitioning for overstaying non-immediate relatives as shown in the case of Matter of Zamora-Molina, 25 I&N Dec 606, decided on October 6, 2011 by the Board of Immigration Appeals (BIA) which decides appeals from, among others, decisions of Immigration Judges.

Form I-130 which is used to petition for an alien relative requires that the petitioning relative indicate the name, address, immigration status, authorized period of stay, and other information about the relative being petitioned. If USCIS personnel find that the alien has overstayed they will report it to the Department of Homeland Security (DHS) who will initiate removal proceedings against the alien under INA § 237(a)(1)(B), 8 USC 1227(a)(1)(B) for remaining in the U.S. longer than permitted.

Zamora was admitted to the U.S. on July 7, 2000 when he was 13 years old on a B-2 (tourist) non-immigrant visa with authorization to remain in the U.S. until January 5, 2001. On August 5, 2004 when he was 17 years old, his mother filed an I-130 petition to accord him second-preference classification as the minor child of a lawful permanent resident (2A preference category) under INA § 203(a)(2)(A). On March 22, 2007, USCIS approved the petition with an August 5, 2004 priority date. On July 24, 2009, when the alien was 22 years old and before his priority date became current, his mother naturalized.

ALIEN BENEFICIARY CHARGED WITH OVERSTAYING

Meanwhile, on January 23, 2008, DHS charged Zamora with removability for remaining in the U.S. longer than permitted. He conceded removability but moved for termination of the proceedings, arguing that he was eligible to adjust his status under INA § 245(a) as the child of a USC. He claimed that although he was over 21 years old, he could retain his status as a “child” by applying the formula in the Child Status Protection Act (CSPA), INA § 203(h)(1) to his age at the time of his mother’s naturalization.

ALIEN WHO REACHES 21 NO LONGER IMMEDIATE RELATIVE

The Immigration Judge (IJ), held that the alien was removable since he conceded removability. The IJ rejected the alien’s argument that he was eligible to adjust his status as an immediate relative, holding that he was ineligible because an alien’s biological age on the date of the alien parent’s naturalization controls whether an alien is an “immediate relative,” and that the alien did not qualify as an immediate relative because he was 22 years old when his mother naturalized. The Judge said that when the alien’s mother naturalized, since he was over 21 years old, he was accorded first preference classification as a unmarried son of a USC under INA § 203(a)(1). However, a visa was not yet immediately available to him, hence he could not adjust his status. A visa is “immediately available” when an alien’s priority date is earlier than the date for the specified preference category shown in the current Visa Bulletin.

The BIA affirmed, holding that INA § 201(f)(2) precluded the alien, who was over 21 when his mother naturalized, from qualifying as an immediate relative, and that INA § 204(k)(2) did not allow the alien to retain his 2A-preference status (minor child of LPR) after his mother naturalized. The BIA explained that under § 201(f)(1) if the child of a USC is under 21 when a visa petition is filed, he retains his classification as an immediate relative even after turning 21, but this provision is inapplicable to the child of an LPR who has filed a petition according the child 2A preference status and who subsequently naturalizes. In that case § 201(f)(2) applies and the determination whether the alien qualifies as a “child” shall be made using the age of the alien on the date of the parent’s naturalization. The BIA said that an alien cannot “opt out” of the automatic conversion of the 2A-preference category to first preference category when the  parent becomes naturalized, although an alien could “opt out” of the automatic conversion of a 2B-preference category to first preference category when the parent naturalizes.

COMMENT: Why did not the parent file a visa petition upon the child’s arrival when he was still in legal status? Why did the parent file the petition after the child had overstayed for 4 years? Did not the parent realize that the child would be caught overstaying? Why did not the parent naturalize before petitioning for the child so that he would have been an immediate relative?


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)