Can I qualify for a 245i if I have an overstayed visa? 8 Answers as of October 28, 2011

You could be eligible for permanent resident status despite your unlawful presence if you are grandfathered by the petition on behalf of your mother. It will take a number of years before you can actually be granted lawful status through your brother. You should consult with an experienced immigration attorney to fully assess your immigration history before you take any steps.

You don't need to file for 245i penalties, where you can prove that you lawfully entered with a tourist visa. Do you still have your visa and I-94? I strongly recommend an appointment with a competent and experienced immigration attorney. You will save a lot of grief if you have a competent professional handle this matter.

If the petition that was filed for your mother is in a category that allows for derivative children and if you were a proper derivative on the application filed for your mother then you may be grandfathered under 245(i). Once you are protected by 245(i) the protection follows you to a later filed family-based petition. That means that if your brother files for you and you eventually immigrate based on that petition, you can use the 245(i) protection from the previous petition to cover you on the new petition. I must warn you, however, that the backlog in the brother and sister category is enormous and you are looking at a minimum of an 11 year wait before you will be eligible to immigrate as the brother or sister of a citizen. For the current visa bulletin, click here: http://travel.state.gov/visa/bulletin/bulletin_5572.html

You may be 245i protected if you were physically in the US on December 21, 2000 and a visa petition was filed for you or your parents (and you were derivative beneficiary) on or before April 30, 2001.

If no other immigration violations, yes.

We would need additional information about your case to determine whether you were grandfathered. We would need to know what type of petition was filed on behalf of your mother. Your brother could petition for you and if you are grandfathered you could adjust, but you will be waiting a very long time for an immigrant visa to be available to you. It may be best to meet with our office to disucss your entire immigration history to determine your best options.

If a petition was filed on your behalf before April 30th, 2001 and it was approvable on its face, you may qualify for 245i. The issue is it will take a number of years for your brothers petition to become current. You should speak with and retain an immigration attorney to discuss your options.