I'm posting in hopes I can gather some information and shed light. This isn't my own situation, but rather of my girlfriend.

She is a minor, entered the country legally, and over-stayed. Her mother is the same case. Her mother recently married a US citizen, and they filed the necessary forms for her permanent residency.

I am not sure when they filed, but I believe they were expecting things back from the immigrations office in February.

While things were being processed at USCIS, she left the US and returned home (Korea). I'm trying to figure out what will happen to her in terms of her permanent residency, and also for her returning back to the United States.

Can she still file for residency? Is she able to enter the US? What should her next steps be?

Her family (still in the US), is being awfully vague about her situation and I just want to get some answers.

Any help would be appreciated.

She will not be permitted back in. Her being a minor saved her from accruing illegal presence.

Her mother and step father are the ones that will need to file and it will be a long wait. She will be classified as unmarried son/daughter of an LPR once the mother has her GC.

That puts her at roughly a 5 or so year wait after the mother receives her GC.

Thank you for the prompt response.

What exactly is the reason she will not be permitted to enter again? The fact that she over-stayed? How exactly does it work when a minor overstays?

Also, is it not possible for her step-father to just re-file everything while she is overseas?

There is a difference between a minor overstaying versus an adult. If an adult overstays they accrue illegal presence.

If an adult overstays over 180 days but less than one year they incur a 3 year ban. Overstay over a year its a 10 year ban on re-entry. This assumes they leave the country. If they don't leave the ban is not a factor in so far as an adjustment of status goes for an adult.

Children are considered innocent of this since they are under the care and custody of their parents. However, since she left and her visa has expired she will not be permitted back in the country. Applying for a new visa probably won't fly since it will be obvious there is immigrant intent with an application for a non-immigrant visa.

If the step father has started the process for both that may help or complicate things. Depends on how far along in the process they are.

Ahn Nyung Ha Shib Ni Ka.

Honesty In Words Means Everything. . Good Job.

Is Really Nice When People Ask properly! Tends To Make All The difference In The World! Good luck Kangiepoo.

This message has been edited. Last edited by: MakeItRight!,

There are some other potential legal issues. May explain why she went back.

I assume the girl has a father back home. Can't say I know about Korea for sure but the issue of custody may come up. In order for the children to be granted LPR status the mother would need something from a court granting her complete physical and 'legal' custody of the child to not require the consent of the father to the daughters immigration.

Thank you again for the response.

In terms of her going back... the reason itself was rather stupid, and has nothing to do with legal issues, the immigration process, or anything of that sort. I'm not to sure about the whole custody issue, but her father resides in the United States.

And hello to you also MakeItRight! . I really hope everything gets resolved... but looks like it's an iffy situation she's in.

If anyone else has other possible insight, it would also be greatly appreciated.

Up late working and thought Id'e pop in again. If her father is in the U.S. that may make a difference if he is a USC. Its much faster for a USC to bring in a relative versus an LPR (GC holder).

I do need to make one correction. The time frame is not 5 years. A lot less since the child is under 21. Under a year at this point.
But it still requires the mom to be a LPR first or the father can if he is at least an LPR already.

kangiepoo, can you be more specific regarding her age? It is important if you want a reasonable answer.

"Minor" for immigration purpose and "minor" for voting and buying alcohol is different.

How old was she when she last enter the USA?
How old was she when her mother got married?
How old was she when she left the USA? And how long ago was that? And do you know if she has Advance Parole (a paper one can apply for) to return?

davdah, in case of LPR petitioning for a child (under 21) takes 5+ years for an immigrant visa to become available.

Her father is a USC. And by minor, I was implying under 18. The time she last entered the United States was early 08, and she was 16 at the time. When her mother got married, she was either 15/16. She left the United States approx. one week ago, and she does not have an advance parole.

Thank you davdah again for the insightful response. aneri, hopefully my answers will help.

OK, that's clear now. thanks.

1. she has no ban for overstay as she left before her 18th birthday
2. if she was included in Adjustment of status process, that's now void as she left without Advance parole
3. The stepparent/child relationship was formed before your girlfriend reached the age of 18, so her step-father can petition for her to get an immigrant visa (process lasts about a year)
4. Once her mother becomes Permanent resident, she can petition daughter under F2 category (takes about 5 years)
5. Her natural father may petition for her as well (1 year)

There are also fiance and spousal visas, but, in my opinion, you guys are too young for that...

As a prospective immigrant (extended stay in the USA and having both parents living here), your girfriend would have almost no chances to enter with a tourist visa. (Although, if I understand you post, that's what she did in early 08 - she was very lucky).

Bottom line, nothing can be done fast and without the cooperation from her family. You noticed that they are being "wafully vague". Do you know why she left? (don't need to post here - but it may give you an idea how willing her step-father would be to petition for her)

good luck

Thank you aneri, that makes a lot of things clearer to me.

I guess I knew everything in the end depended on her family (well, obviously..?), but I just wanted to know roughly what shape exactly she is in, and possibly how she could get out of it.

I'm not sure about the willingness (also the financial ability) of her family, but I do hope everything works out for the better.

Thank you again for your responses, and also to davdah. This pretty much answers all my questions.

Ok, now for the bill:

You need to vote for McCain & Palin. Voting for them will insure lower taxes so her family can afford a lawyer that they will probably need.