If our child overstayed the I-94, can we still apply for the I-130 to change his status while he is overstaying in the US?

UPDATED: Jul 11, 2012

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If our child overstayed the I-94, can we still apply for the I-130 to change his status while he is overstaying in the US?

Our child is fully adopted in Mexico by my husband who is a US citizen and from Mexico and myself, also a US citizen and from the Netherlands. The adoption was done domestically in Mexico (not internationally according to the The Hague Convention). The child has already a new Mexican birth certificate and passport with my husband’s and my name on it. We need to know the easiest way to get US Citizensship for the child. We used the Dutch passport for the child to enter the US because he was refused a visa to the US with the Mexican passport.

Asked on July 11, 2012 under Immigration Law, Florida


SB, Member, California / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes, as long as the child entere the US lawfully, even if the I-94 is expired, you can submit the I-130 on the child's behalf.  You should be able to file the I-130 and I-485 concurrently, as well as all other supporting documentation.

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