Immigration Corner | Can I transfer my filing to the US?

Dear Mrs Walker-Huntington,

I am an unmarried, over-21-year-old who is trying to seek some information as it relates to a petition - an I-130 - filed by my mom.

I’m somewhat confused because, based in my research, I see where some were found to be six years old and some seven years old for the above-mentioned petition.

My question is, can I travel to the United States (US) on my non-immigrant visa and have my case transferred to the United States, instead of me waiting for the specific time period given?

Awaiting your response. Thank you.

– N.A.S.

Dear N.A.S.,

Your category will depend on whether your mother is a US citizen or a green card holder. The adult son/daughter of a US citizen is in the F1 Preference category and in June 2020, the US Department of State (National Visa Center – NVC) will have visas available for those persons with a priority date earlier than May 22, 2014. If your mother is a green card holder, your petition would be in the F2B category and in June, persons with a priority date earlier than March 15, 2015 would have visas available.

NO INTERVIEWS

However, currently, Donald Trump proclaimed a ban on immigration for 60 days (effective April 23, 2020) for persons in those two categories, among others. Although embassies in most countries around the world remain closed because of the novel coronavirus pandemic, there are no interviews for persons who are impacted by the immigration ban.

It is definitely not wise for someone in your situation to travel to the United States and wait until an immigrant visa becomes available. For one, once an immigrant visa is filed for, the beneficiary is to be interviewed in their home country. If the beneficiary makes the move to the United States, the immigrant visa can be denied. If you are eligible to change your status once a visa becomes available, your non-immigrant entry into the United States can be voided if you are thought to have entered the US with the intent of remaining until the green card is available. You would therefore be unable to change your status and would be subject to removal.

Second, in your category, if you were in the United States and out of status when the green card becomes available, you would not be eligible to change your status with your mother’s petition. You would be required to consular process, i.e., to leave the United States and return to your home country to be interviewed for the green card. If you have remained in the United States out of status for six months or more, you would face a mandatory bar to returning to the US and would require a provisional waiver before leaving.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com