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Immigration Forum / USA Marriage Base / August 2005Waiting time for "child" to immigrate?
OK here's my situation. I came over on a K1 in 2003, with my youngest daughter on a K2. We are both still awaiting AOS. My eldest daughter (just 19) chose to stay in the UK, but her dad, who she lives with, has terminal cancer, and she knows that eventually she'll have no 'family' home there. She is in a very bad state emotionally (read more at the bottom of this page:- http://britishexpats.com/forum/showthread.php?t=319229&page=5&pp=15) and I would like to give her a realistic idea of the scenario if she indeed wants to come here and live. Looking at the USCIS website, it appears to me that she is our "child" in immigration law, and as such, my husband, as the US citizen and her stepfather, can petition for her to immigrate. Am I reading the text correctly -it appears to say she could come over immediately (if under 21 at the time). http://uscis.gov/graphics/howdoi/child.htm "A U.S. citizen’s unmarried, minor child is considered an immediate relative, does not need a visa number, and is eligible to receive an immigrant visa immediately." I was under the impression it would take years, but please can someone clarify that I am reading it correctly? NB We did marry before she was 18.  Signature"We must accept finite disappointment, but we must never lose infinite hope" - Martin Luther King, J > OK here's my situation. I came over on a K1 in 2003, with my youngest > daughter on a K2. We are both still awaiting AOS. My eldest daughter [quoted text clipped - 26 lines] > > NB We did marry before she was 18. Based upon your statement -- she IS your husband's step-child. I would suggest that your husband file an I-130 for her ASAP [no G- 325A's required by the way]. This is to prevent an "age-out" when she turns 21. SignatureCertified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization > OK here's my situation. I came over on a K1 in 2003, with my youngest > daughter on a K2. We are both still awaiting AOS. My eldest daughter [quoted text clipped - 26 lines] > > NB We did marry before she was 18. Heed Mr. F's advice. Your husband needs to file the I-130 for her now. She will have to wait, however, for the I-130 to be approved (helpful if it is approved before she turns 21) and then go through the process at the US Consulate in London. Once here she will be a PR regardless of whether or not you are. If she wishes to return to the UK to be with her father in his final days, she can then file for a re-entry permit via form I-131 to help ensure that her status will not be abandoned. Since you and her sister are living her and her return to the UK is valid and temporary abandonment should not be an issue. Rete SignatureI'm not an attorney. This disclaimer is valid in NYS! > Heed Mr. F's advice. Your husband needs to file the I-130 for her > now. She will have to wait, however, for the I-130 to be approved [quoted text clipped - 7 lines] > > Rete Rete: I also had "CSPA" in mind. SignatureCertified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization > Rete: > > I also had "CSPA" in mind. Thank you both, for your replies. I think my problem is, she doesn't know whether she wants to come here or not, but wanted the option left open, and to know how long a wait she would have. How would it affect any later chances in life of her immigrating on a I-130, if we file one now and she decides not to come? We have previously talked of her coming over a few years down the line. Right now she wants to stay with her dad until the end. Mr F, what is CSPA? Signature"We must accept finite disappointment, but we must never lose infinite hope" - Martin Luther King, J > Thank you both, for your replies. I think my problem is, she doesn't > know whether she wants to come here or not, but wanted the option left [quoted text clipped - 5 lines] > > Mr F, what is CSPA? Hi: Actually, there were two different "CSPA's" one of which is dead letter now. But is "Child Status Protection Act." Under CSPA, a "child" doesn't turn 21 when they turn 21 for purposes of immigration. The I-130 gives flexibility. Once approved, the immigrant visa process can be stretched out to a certain extent. Also, an approved but later unused visa petition does not alter later immigration. BTW, a further way to extend flexibility is for YOU to ALSO file an I- 130. That would be in the "F-2A" category which, unlike IR,has a backlogged quota. So if the IR ends up being cancelled for "lack of prosecution" the F-2A/B will remain until the quota comes current. SignatureCertified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization > Thank you both, for your replies. I think my problem is, she doesn't > know whether she wants to come here or not, but wanted the option left [quoted text clipped - 5 lines] > > Mr F, what is CSPA? Thanks Mr. F that was one of the reasons I mentioned age 21 in my reply. At least with the approval before that time her clock will slow considerably. Dbark, I would recommend she go through the procedure now. Regardless of how she feels, having the residency status will help when and if she decides she doesn't want to be alone in the UK when her father passes. As I mentioned she can return to the UK to be there with him and/or to return to the UK or elsewhere worldwide to attend college as long as you are remaining here in the US and she obtains a re-entry permit (I-131) before leaving. That will allow her to be out of the US for up to 2 years and is renewable. So if she wants to pursue college there and post graduate work and/or work experience in her field, etc. she can hedge her bets on retaining residency status until the time she has definitely made up her mind. SignatureI'm not an attorney. This disclaimer is valid in NYS! > Thanks Mr. F that was one of the reasons I mentioned age 21 in my > reply. At least with the approval before that time her clock will [quoted text clipped - 11 lines] > field, etc. she can hedge her bets on retaining residency status until > the time she has definitely made up her mind. Hi: The law on retention of LPR while outside is very fact specific. There is one published district court case, Angeles v. INS, where a Filipina stayed with her dying father -- the court stated it was an "admirable" purpose, but still found abandonment. SignatureCertified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization > Hi: > > The law on retention of LPR while outside is very fact specific. > There is one published district court case, Angeles v. INS, where a > Filipina stayed with her dying father -- the court stated it was an > "admirable" purpose, but still found abandonment. And yet it was a question on my mid-term which I got correct. As long as the PR could show they had not abandoned residency through family members still inside of the US, bank accounts, a place of residency (i.e. family home), and he showed that he cared for his dying father and then took care of all the legalities after death, his residency was not revoked. As you have mentioned in the past, and my professor, once you are in front of the IJ, you can present your case as to what you have done to preserve your residency and he/she will be the one to make the decision. For Dbark, her daugther is better served, IMO, to have the GC now and hopefully not encounter status issues if she decides to come to the US eventually rather than to wait until she is past 21 and have to wait perhaps years. SignatureI'm not an attorney. This disclaimer is valid in NYS! > And yet it was a question on my mid-term which I got correct. As long > as the PR could show they had not abandoned residency through family [quoted text clipped - 12 lines] > eventually rather than to wait until she is past 21 and have to wait > perhaps years. I am confused on why an age of 21 is a concern in this case, if the USC was the stepparent before the child turned 18. On the I-130, it states the USC can petition for: 1) blah blah...unmarried child under 21 years old 2) blah blah 3) your unmarried son or daughter over 21 years old 4) your married son or daughter of any age 5) blah blah According to the USCIS website, the definition of child includes the following: Definition of a Child The immigration law defines a “child†as an unmarried person under the age of 21 (a minor) who is >A child born to parents who are married to each other (born in wedlock) >A stepchild if the marriage creating the steprelationship took place [quoted text clipped - 14 lines] >after the sibling. The child must also otherwise fit the definition >of orphan or adopted child Back to Top Definition of a Son or Daughter >An unmarried “son or daughter†is a person who was once a >“child†but who is now 21 years of age or older. A “married son >or daughter†is a person who has a recognized parent-child >relationship, but who is also married, regardless of age. Isn't the USC considered a parent, and the child a son or daughter, as long as they married before the child was 18? If so, why is there a restriction on filing before the child turns 21 if, according to the above on form I-130, it appears the child can be petitioned for at any age or circumstances? Sorry if I'm being dense! > I am confused on why an age of 21 is a concern in this case, if the > USC was the stepparent before the child turned 18. [quoted text clipped - 47 lines] > > Sorry if I'm being dense! After there 21 they'll be stuck in the queue that'll take years to petition as opposed to being an immediate family member that can be processed relatively quickly. > I am confused on why an age of 21 is a concern in this case, if the > USC was the stepparent before the child turned 18. [quoted text clipped - 47 lines] > > Sorry if I'm being dense! Hi: Its a fair question. "Child" defined as unmarried under 21 years -- no quota -- no numerical limitation Son or daughter -- married or over 21, then there is a wait. If LPR parent files, there is a sub-quota in the "FB-2" category, you want to be a child in the "FB-2A" -- the wait is shorter. SignatureCertified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization > Hi: > [quoted text clipped - 6 lines] > parent files, there is a sub-quota in the "FB-2" category, you want to > be a child in the "FB-2A" -- the wait is shorter. Ah!!! Thanks for explaining that! :) > I am confused on why an age of 21 is a concern in this case, if the > USC was the stepparent before the child turned 18. [quoted text clipped - 47 lines] > > Sorry if I'm being dense! Because the adjustment should be adjudicated before the age of 21 or they fall into another category. However, as Mr. F states the Child Status Protection Act more or less than care of that as long as the I- 130 is filed and approved before the child ages out. This means the I- 130 along not the final adjudication of the process in the foreign country and/or the district office. SignatureI'm not an attorney. This disclaimer is valid in NYS! > Because the adjustment should be adjudicated before the age of 21 or > they fall into another category. However, as Mr. F states the Child > Status Protection Act more or less than care of that as long as the > I-130 is filed and approved before the child ages out. This means the > I-130 along not the final adjudication of the process in the foreign > country and/or the district office. Hi: A long time ago, before CSPA, I had a Filipina travel to the PI to obtain her IR "child" visa. We really had to push it to get the interview set before she turned 21 and was downgraded into the "FB-1" category for the Philipines [BTW, CSPA was designed in part to cure the instances of Filipino parents naturalization, thereby "upgrading" their kids to a status with a LONGER wait]. MNL granted the visa at 2:30 pm on the day before she turned 21. Yes, the visa was valid for 9 1/2 hours! Since she had already missed the last non-stop flight stateside, the Consular people advised her to catch the next plane to Tokyo and then get a connection to the US from there. A lot of people don't realize that you have to DEPART your home country in transit to the US before the visa expires. [Warning, DHS appears to apply a different rule to AP's, but I digress]. There is an old case back in the days when Panagra had three flights a week to the US from Caracas. Alien had flown from Maricaibo to Caracas before the visa expired. Not good enough because of two things -- one she didn't catch the next flight and two and more important, she was still in Venezuela when the visa expired. SignatureCertified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization > And yet it was a question on my mid-term which I got correct. As long > as the PR could show they had not abandoned residency through family [quoted text clipped - 12 lines] > eventually rather than to wait until she is past 21 and have to wait > perhaps years. Rete: I had an IJ deny an abandonment case based upon Angeles. However, the BIA did reverse. All I'm saying is that the law is quite specific. BTW, I appeared today before the IJ who was the attorney for Singh in the 9th Circuit. Ira has told me he wishes that someone would get that case reversed somehow. SignatureCertified Specialist Immigration & Nat. Law Cal. Bar Board of Legal Specialization |
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