Adjustment Of Status For Out Of Status Brother

[Beauregard]

good evening, my question is as follow: I am a US citizen and had petition my brother in june 2002, at that time my brother enter the united states with a visitor visa but overstay, his I-94 did not expire until december of 2002, I recently receive a package from national visa center explaining the process and that his visa is available, my question is now that he is the united states will he be able to adjust status, should I continue with this process, and if there is a waiver that he could apply in order for him to stay in the united states, he currently is married and has US citizen kids...what are his chances of him adjusting status in the united states.

thank you for your time on this matter

[MacQuaid]

Hi,

Your brother cannot adjust status in the U.S. since he is not maintaining nonimmigrant visa status in the U.S. He will need to apply for an immigrant visa at a U.S. Consulate in his home country. A waiver of this requirement is not feasible.

However, if your brother departs the U.S. and applies for an immigrant visa at a U.S. Consulate abroad, he will be barred from entering the U.S. as he will be subject to the  10-year bar to entry based on unlawful presence in the U.S. for at least one year. There is no solution to this problem under the current laws, unfortunately, unless he has a U.S. citizen child who is 21 years of age or older, or a U.S. citizen spouse.