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I lived in the united states illegally as a minor when I moved there with my parents in 2001. I left the US in January 2011 at the age of 19. I overstayed roughly 10 years but only 1 year as an adult over the age of 18. Can I apply for a waiver to visit the USA again?

My father is currently still living in the USA and is now a Resident. He filed an I-130 Aplication for me in October 2017. However I wish to visit to vacation and see my father again after being apart for almost 8 years.

Would this be a problem for my application as in would it mess with it in any way? My dad's lawyer says that the request can take 1-2 years before I can get a residency.

I need more info on how to go about my situation.

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    Your dad already retains a lawyer. You should contact them as they are already familiar with your case and will be able to give more precise advice than anyone on this website could. – user16259 Jan 24 '18 at 9:34
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    I would be leery of anyone who professes to be both an immigration lawyer and a tax return preparer (and one who is impossible to get a hold of). Those are two rather different jobs, the consequences of being misled by an expert can be severe, and there are a number of scams out there. I would ensure this person is in good standing with the state bar association (there should be a search on the website for whatever state they are licensed in) and that they have real experience in immigration law. – Zach Lipton Jan 24 '18 at 9:46
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    That's true but yes he is indeed an immigration lawyer and a tax return preparer. He helped my father get his citizenship when he married and took care of all paperwork. I know he has the answers but he's so hard to get a hold of some points during the year. I would be nice if someone could just give me some general answers about my problem. – Alejandro Jan 24 '18 at 19:02
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    What status were you in when you were in the US? – user102008 Jan 24 '18 at 19:12
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    @ZachLipton that's not unusual in a small town, but you're exactly right - unless this guy is truly gifted (and can prove it by being published, a nice record of winning appeals etc.), you really need the big-city best of the best. I find her by calling lawyers near that practice but not in it. "Do you do immigration law? NO? Well who's the best?" 5 calls later you'll have heard one name 3 times. That's her. – Harper Jan 24 '18 at 20:07
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Assuming you were in the status in visitor status or any status other than F (student) or J (exchange), you would have gotten an I-94 with a specific date, and staying past that date would subject you to "unlawful presence". However, you do not accrue "unlawful presence" while under 18. So you accrued a little more than a year of "unlawful presence" from when you turned 18, and then left the US, triggering a 10-year ban. This ban will end in January 2021, so you are still under the ban, and need a waiver to enter the US.

Assuming you are not a Canadian citizen, you need to apply for a visitor visa to visit the US. Your visa will be denied, either due to the ban or some other reason (usually the generic reason of "failure to overcome the presumption of immigrant intent"). If your visa is denied only due to the ban and not due to immigrant intent, then the officer will inform you the steps to apply for a nonimmigrant waiver, which will be adjudicated by the same officer. If your visa is denied due to "failure to overcome the presumption of immigrant intent", there is no waiver and there is nothing you can do other than try again. Past overstay is a negative factor in the determination of immigrant intent; also, you are the beneficiary of a pending petition and it is difficult to say what effect that has on the determination of immigrant intent. Applying for a visa won't affect your immigrant petition.

By the way, what you have been told about the "1-2 years before you can get a residency" is wildly incorrect. An unmarried over-21 child of a citizen is in the F1 category which currently has a wait of almost 7 years (from the date the I-130 was filed) for people born in most countries (longer for people born in Mexico or the Philippines). A married child of a citizen is in the F3 category which currently has a wait of more than 12 years for people born in most countries (longer for people born in Mexico or the Philippines). They may be referring to the time the I-130 petition takes to approve; but that time doesn't matter as an approved petition doesn't allow you to proceed -- you also need a visa number to be available for your category and priority date before you can proceed to the next step.

  • It's not wildly incorrect, I don't know where you got that information from but my father got his residency in 1 year and 8 months since submission. The lawyer that we know has a way to make applications land in the Nebraska Center and it's the fastest processing center in the entire USA. – Alejandro Jan 24 '18 at 22:18
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    @Alejandro: What I said is correct for your category. Your father immigrated in a different category. You didn't mention how he immigrated, but for example, if he was petitioned by his US citizen child or US citizen spouse, it would be in the Immediate Relative category which has no wait for visa numbers. For you, it makes no difference how fast the petition is approved, because, as I said, an approved petition does not allow you to immigrate, until a visa number is available, and the wait for the latter is far longer. – user102008 Jan 25 '18 at 0:42
  • He was petitioned by a US resident not citizen. I've heard of millions of cases were it could take years for you to get a residency. I do know the number is quicker. I've already got an Alien number assigned to me. I'm just inquiring for the tourist visa. – Alejandro Jan 25 '18 at 0:56
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    @Alejandro, The current final action date for the spouse of an LPR is 1MAR2016, while that for the unmarried adult child of a US citizen is 15MAR2011, so you should expect to wait 5 years longer than an LPR's spouse. The A number is assigned when the I-130 is in process, the long wait is at the NVC after the I-130 is approved. He's absolutely right that, for the B visa, you need to try it and see what happens. – Dennis Jan 25 '18 at 4:31

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