my brother is over 21 years old and he initially came here as an international student. But in 2011 my mother got her green card and she filed for petition for my brother's green card. He did not keep his status since 2011 (which is a huge mistake) Now it looks like he may not be able to get a green card at all through my mother. If my mother becomes a US citizen, can my brother get a green card through my mother when she becomes a citizen? How long is the wait time
Possibly. “Immediate relatives” of a U.S. citizen (i.e., spouse, unmarried children under the age of 21, and parents) always have a visa number immediately available to them. However, if the family member of the U.S. citizen is not an immediate relative, in this case an unmarried son over the age of 21, the U.S. citizen may still be able to sponsor them by what is called a “family preference category.” The wait time can be many years, up to 10 or more. I would suggest that you consult with an experienced immigration attorney who can address the issues specific to your case.
Michael Alexander McvickerImmigration AttorneyHerndon, VA ·
A U.S. citizen may sponsor a child, including an adult child over the age of 21 (married or unmarried) as may a U.S. Permanent Resident (but, in that case, only if the adult child is unmarried). If your brother last entered the U.S. on an F-1 visa he would have been admitted into the U.S. for the following time period: "D/S" (Duration of Status). This lack of an actual expiration date on his I-94 Card and in the admission stamp in his passport, in bis period of admission creates a type of legal loophole which may benefit your brother in terms of him not being subject to the 10-year bar to admission to the United States. That means he may still be abke to consular process to obtain his immigrant visa, wbich means tbat at a certain point he will bave to leave the U.S. to go to the U.S. Embassy or U.S. Consulate in his native country to apply for an immigrant visa that he will then be abke tk use to re-enter the U.S. and be admitted into the U.S. as a Permanent Resident.
I am giving you only a brief summary, which I realize may be somewhat technical. The best thing.may be for you, yiur mother, and yiur brother to schedule either a personal consultation with an experienced immigration lawyer in your local area, in the lawyer's office, or a co sultation with an immigration lawyer anywhere else in the U.S. , by phone or Skype. Since U.S immigration law is federal law an immigration lawyer anywhere in the United States can advise and represent your mother and your brother.
The lawyer will also be able to explain "Visa Priority Dates" and how these affect the timeframe for your brother's Permanent Residency porcessing.
Your brother may not be out of luck. As my colleague explained he may benefit from the petition depending on whether his visa was stamped as D/S. You should definitely consult with a reputable immigration attorney. Thank you and Happy New Year!
