Birmingham, MI Immigration Law Firms & Lawyers

Since your brother is married and now has a one-year-old child, his case is automatically transferred from the F-1 to F-3 category for married sons and daughters of U. S. citizens. He gets to keep the old priority date. He should notify the National Visa Center of the changed conditions and ask to have his wife and child included in the F-3 application. Documents which are required are passport copies of wife and child, marriage certificate and proof of termination of all prior unions, and birth paper of the child. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.    

Most likely, your sister will only be able to immigrate herself and her youngest child who is under the age of 21. That is because the relevant time to look at age for a child is generally at the time of entry into the United States. There is an exception under the Child Status Protection Act under which a child's age becomes frozen at the time that the priority date becomes current, and credit can be given for the period of time that the I-130 petition pended at Immigration before approval. If you use those points to calculate and the other children's ages are less than 21 when the priority date is current, the child or children could still apply to immigrate with your sister.Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.    

You should stay in the US and finish the process. If you leave before you get travel permission, your case will be denied. In addition, the I-485 filing allows you to stay beyond your B visa I-94.