Need advice on what to do next for brother

[ochiatl]

What is the name of your state? Georgia

Last year my father filed for my brother, aged 35 and unmarried, who was born in Nigeria to a different mother, for permanent residency. My mother who was born a US citizen accepted him as her son (my parents we seperated during that time). My family lived in Nigeria for years and my brother resided with them. My brother came here for the first time in July 2006 on a visitors visa and in September 2006 my father filed for him to obtain a green card so that he could travel back and forth to visit regularly. My father was a permanent resident for 35 years until he became a US citizen in 2004. My brother has never tried to come to the US before simply because he did not want to leave his mother by herself because she had cancer.

After my father filed, he had several strokes and I became his caregiver. Unfortunately he communicates better in his native language, which I do not speak, but my brother does. His doing better but it helps to have my brother here. When my father became ill, we as a family discussed the situation and we all agreed that he should stay because of our father. The doctors believe that he will only be with us a couple of years because of the damage and the inability to stop the strokes and seizures. We went to his immigration hearing and provided all documentation that they requested. They approved the petition for alien relative, I-130, but denied his I-485 based on the fact that there are no visa numbers available. They are still processing 2001.

Now that the I-485 has been denied, we have been told that he will be sent a letter telling him when he has to leave. He currently has a very lucrative financial position with a well known International Company, but it is a contract position. His mother passed away in January 2006, so he has no family left in Nigeria. We are a an educated family. My parents are both doctors, as well as another brother and the rest of the us (5) have our master's degrees, so we are not burdens on society.

Is there anyway that we can get an advanced parole (I think that's what the immigration officer said) so that he can stay? He is a tremedous help in taking care of my father. Without him, communication would be so difficult. Also, we want him here because we love him. I can't bear the thought of him having to wait 6 years for a visa number but we also do not want him to break the law by staying here illegally. He will return if he has too, but if he has to go back, there will be no point in returning. He gave up a very successful career in banking and sold his home to stay here for my father. We didn't anticpate the denial of the I-485.

Should he try to apply for the visa lottery? Or should we go in front of an immigration judge? What are his chances? We have not received the notification yet of how many days he has before he must leave so we do not know how much time he has. What is the typical time frame? What can we do?

[ImmigAttyLana]

No, he is not eligible for any type of advance parole and he was certainly not eligible to file for the I-485 until the visa priority date became current. He should look at employment-based options for immigrating to the US or at least obtaining a temporary work visa since the family-based petition that was filed by your father on his behalf will take at least 4-6 years before your brother would be eligible to immigrate.

The visa lottery is only "played" once a year and it is such a gamble that he can certainly participate but he should definitely not count on that as getting him a visa as there are millions of applicants each year for only 55,000 visas.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

[ochiatl]

Thank you for the information. When the I-130 and I-485 were filed, we had no idea that there were visa priority dates because we did this on our own. I feel as though we just threw money down the drain. I do have a few more questions. Is he now out of status? How long does he have before he has to leave? He came on a visitor's visa and his I-94 expired in October 2006, but because we had filed, we were told that he would remain in status while the case is pending. How would he go about changing to a employment based visa or temporary work visa? Could my father medical condition make any difference with an immigration judge during a deporation proceeding?

Thanks.

[ImmigAttyLana]

Not that he was ever eligible to file for the I-485 but that could have tolled his presence in the US but once the I-485 was denied, he is out of status and accruing unlawful presence now. I would certainly suggest that he depart the US before any deportation hearing because this is NOT going to be a factor in determining whether or not he gets to stay. Unfortunately, many people would like to be able to stay to help care for relatives, etc. but this is not a valid reason for getting a reprieve from deportation or getting permission to remain in the US lawfully. If he wants to stay lawfully, then as I indicated, he should look for other options, based on employment, etc.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

[ochiatl]

I do not understand what you mean by "tolled his presence" in the US? If his job would like to hire him as a permanent employee, can he change to an H1B even though he is out of status now?

He has been dating someone for almost a year now who is a USC and they are serious, and she is suggesting marriage, but I don't want them to rush into marriage because of this. Would this be a problem for him now that he is out of status or view they view this suspiciously?

[ImmigAttyLana]

No, a H-1B will not be possible for him now for two reasons: one is that he is out of status and, therefore, cannot change to H-1B status since you need to be IN status in order to be able to change status; secondly, the H-1B quota has been reached and the earliest that a H-1B petition could be filed by an employer on his behalf would be April 1., 2008 for a start date of employment of no earlier than October 1, 2008.

If he is in a bona fide relationship with a USC and they are planning to marry, then that would be the only way that he could remain in the US, even if he is now out of status and unlawfully present, and adjust status on the basis of the marriage to this USC.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.