Q: If my brother applies for a green card for me, will I have to leave the U.S.?

Full question: I came to the U.S. with a visitor’s visa in the 90’s but I never left. A few years ago, I got TPS. My brother is a [U.S.] citizen and wanted to apply for a green card for me since before I came to the U.S., but I didn’t want him to do it because it takes too long. My TPS might be ending so now I want him to apply for a green card for me, but I heard I’ll have to leave the U.S. is this true? What if they don’t let me back in?

Answer: When U.S. citizens petition for their brothers or sisters, the wait time can be about 13 years. Thus, if your brother had petitioned for you back in the 1990s, you likely would have had a green card by now. Nonetheless, your brother can still petition for you to get a green card, however, the process will be much more complicated now.

First, since you are an F4 family preference, you are required to maintain lawful status. Because you overstayed your visa until getting TPS, you do not meet this requirement.

Second, because you are an F4 family preference and not an immediate relative, you cannot adjust your status, which means you’ll eventually need to leave the U.S. to complete the consular process for your green card.

Third, because you overstayed your visa before getting TPS, when you leave the U.S. to complete the consular process, you will be subject to the 10-year bar, meaning that you cannot come back to the U.S. for 10-years. 

Applying for immigration benefits is more than just filling out forms. This is a complicated process based on immigration law; and it can be unnecessarily expensive if you do not hire an experienced immigration attorney to help you. Even worse, if your case is not handled correctly, you can permanently lose your ability to get any immigration benefits in the future. Before your brother submits a petition on your behalf, both of you should speak to an immigration attorney. It is always in your best interest to hire an immigration attorney to help you with your immigration case.

If you have questions about your ability to get a green card, please don’t hesitate to contact us.

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