Adjustment of status

[nih]

Hello

I entered to USA on H1 b but currently have no status and never left USA after my H1B was denied. My parents who are US citizen had applied my green card about 15 years back and my priority date is coming soon. Now my question is whether I have to leave USA for applying AOS or I can apply it while I am here in USA.  Also my daughter who is US citizen is turning 21 within 2 months, so is it advisable to wait until she can apply for my GC.  Thank you in advance. 

[pontevecchio]

You need to discuss your issue with an Immigration Lawyer.

[newacct]

On 12/22/2019 at 3:57 PM, nih said:

Hello

I entered to USA on H1 b but currently have no status and never left USA after my H1B was denied. My parents who are US citizen had applied my green card about 15 years back and my priority date is coming soon. Now my question is whether I have to leave USA for applying AOS or I can apply it while I am here in USA.  Also my daughter who is US citizen is turning 21 within 2 months, so is it advisable to wait until she can apply for my GC.  Thank you in advance. 

People in family-based categories other than the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen) are not eligible for Adjustment of Status if they are out of status or have ever been out of status. Assuming you are over 21 or married, your petition from your parent is not in the Immediate Relative category, and therefore you cannot do Adjustment of Status on that petition. You can only do Consular Processing abroad to immigrate on that petition, and that requires leaving the US. Depending on how much unlawful presence you accrued before you leave the US, you would trigger a ban upon leaving (you start accruing unlawful presence when your I-94 expired; if you accrue 180 days of unlawful presence and then leave the US, you trigger a 3-year ban; if you accrue 1 year of unlawful presence and then leave the US, you trigger a 10-year ban). An immigrant waiver for this ban is possible if you can show that your parents would suffer "extreme hardship" if you can't be in the US, but "extreme hardship" is difficult to show.

On the other hand, once your daughter turns 21, she can petition you and it would be in the Immediate Relative category. You would be eligible for Adjustment of Status inside the US on your daughter's petition regardless of how long you have been out of status or how much unlawful presence you have accrued. You would not need a waiver because you would not have a ban since you do not need to leave the US.