Yesterday I gave you a real situation showing how a notario royally screwed up Father, Wife, and Daughter’s application. “Notario” filed the wrong application, which cost the family thousands of dollars in unnecessary filing fees, years of unnecessary undocumented status, and now may result in removal proceedings against Wife and Daughter. To review the facts, read yesterday’s article Why was my wife’s petition to adjust status in the U.S. denied?
This is actually quit basic
Remember Father’s Eldest Son who applied for him? Well it turns out, that Father married Wife when Son was still a teenager, so Wife is his step mother. Son should’ve applied for Father and Wife at the same time. Wife would have come to the U.S as lawful permanent resident in 2011. Since immediate relatives can’t be derivative to others application (e.g., Daughter derivative to Wife’s petition), Son would have had to file a separate petition for Father, Wife, and Daughter. However, Daughter would be a sibling application which can take over 10 years. When Father and Wife received their green cards, one of them could have filed for Daughter and she would have received her green card after entering via consular processing. Likely, Wfie would have stayed in their home country until Daughter’s visa was current. Alternatvely, Daughter may have been able to come to the U.S. under a student visa then changed adjusted her status when a visa was available. This becomes tricky.
So what can be done now?
Fixing these problems will cost the family a lot of money, time, and aggravation. Wife and Daughter are facing the possibility of removal. If the “Notario” was an attorney he would be facing malpractice, but of course, he isn’t an attorney and can go on and steal from the next person.
If removal proceedings aren’t initiated, Wife can wait until Father becomes a citizen and applies for naturalization in 2016. Once he is a U.S. citizen, Wife, and Daughter are Father’s immediate relatives and can adjust their status in the U.S as long as Daughter is under 21 and not married. The moment she is 21 or marries, she is not an immediate relative and will then be subject to a preference category (waiting for a visa) and consular processing.
What if they don’t want to wait?
Son can do what should’ve been done initially, apply for Wife as his step mother. That is an immediate relative application and since she entered the U.S. legally she will adjust her status in the U.S.
The same can’t be said for Daughter. If Daughter is still a minor, she would be able to consular process. Father’s petition for her was approved, so she would immediately file for consular processing. If she is over 18 we must determine if any unlawful presence was accrued. She may be facing the 3 or 10 year bar. That means that Daughter would have to file a waiver to ask for forgiveness of her unlawful presence. That means two consular interviews and a longer period of separation from her family. It also make the process more expensive.
I see these types of mistakes too often. There is a lot more to immigration than filing out a form and sending a payment to the right place. You need to know what to apply for, who should apply, and what evidence you need to support the application. Clearly, the notario did not know these things. Father lost money, time, and aggravation. Don’t let this happen to you. Talk to a competent immigration attorney before you file that application.
To speak to our knowledgeable staff regarding New Jersey immigration questions call 888-695-6169.