How long before my brother can have his legal status? 5 Answers as of November 07, 2011

Your brother would be in the Family-Based 1st preference category. http://travel.state.gov/visa/bulletin/bulletin_1360.html There is a two step process. 1) Dad files an I-130 with supporting documentation showing he is a U.S. citizen and your brother is his son. This does not give him any right to come to or remain in the U.S. it just gives him a place in line. The receipt date of the I-130 establishes his Priority Date. 2) Once the I-130 is approved it is normally sent to the National Visa Center if your brother is overseas or is sent to you if he is here. The second stage cannot be filed until the Visa Bulletin indicates they have reached his Priority Date as indicated in the Visa Bulletin link I indicated above - this changes every month and is based on country of birth of your brother as well as his category FB-1. When it comes time to file the second stage if he is in the U.S. he must prove he has always been in a legal nonimmigrant status while waiting (or is eligible under one of the older amnesty programs - none since April 30, 2001). If he is overseas and has not overstayed in the U.S. you may also want to explore a nonimmigrant status for him to come over sooner while waiting for his Priority Date to be current.

The wait depends on the country of birth since it is based on whether or not a visa is available. The visa bulletin for 1st preference ranges from 7/22/2004 (All Chargeability, India and China) to February 8, 1997 (Philippines) and April 1, 1993 (Mexico). This would be based on his father filing an I-130 immigrant visa. Also, there is no "day for day" movement of the bulletin. It can stall or jump forward at any time to use the 23,400 visas available annually. The brother would have to independently file for a work authorized status, such as H-1B 'specialty occupation' or E-2 investor. There is no Employment Authorization Document available while waiting for visa availability.

It depends on the country of your brother's birth and if he is in the US.

Your father can file an immigrant visa petition on behalf of your brother. This application will take approximately 6 months to a year to adjudicate depending upon request for additional documents. Your brother will then need to wait for a visa to available. Visa availability varies from month to month as well as based upon what country he is immigrating from. For all countries (except Mexico and the Philippines) visas are currently available for unmarried sons of U.S. citizens for cases filed on or before July 22, 2004. Once a visa is available, your brother will apply for a visa. This process takes approximately 6-8 months so long as your brother complies with requests for documents and has no issues that would require a waiver (i.e. criminal history, prior negative immigration history, etc.). In the interim, your brother may be able to obtain an employment visa. This would depend upon his experience, education, and skills. This will also depend upon whether he can establish he will return to his native country in compliance with his visa. The fact that an immigrant petition is pending is often used to find a person is an intending immigrant. However, your brother must comply with any non-immigrant visas issued as he will not be able to adjust his status in the United States if at the time he files, he is out of lawful immigration status.

Your brother (if he is unmarried) is an FB-1, unmarried adult child of a US citizen. That preference category is backlogged approximately 7 years. Your father should file the I-130 relative petition immediately to get him a priority date. This filing will not give him any right to be in or work in the US. He will need to wait for the visa date to be current and then file for the immigrant visa at his home consulate.