Bringing my SO's son to the U.S. at a later date

[moonglare]

Hello, my SO will be arriving to the USA on May 1. We plan to get married May 17. My SO's son is 17 years old and will turned 18 on May 24. He originally did not want to come to the USA and refused the option for his visa under the K1. He now wants to come to the USA. We know that he will have to take the visa interview himself and we plan for him to come here early next year.

 

I want to push the wedding date into June, but my SO is concerned about a later date because someone told her that it is better to get married before her son turns 18.

 

My understanding so far is that if he is under 21 there should be no problem. Has anyone have any input about the 18 years old requirement?

 

Thanks

 

-moonglare

[ChrisA]

I have to agree with your SO, it's better to get married before he turns 18 (step-son), even though he won't have a problem with the 21 issue.

 

Some of us are facing this problem of having our SO's son or daughter being labled by the USCIS as aged-out.

[dnoblett]

The marriage that will make you a step parent must happen before 18th birthday. You cannot file the I-130 as a step parent after that date, and your wife will have to then file it and only after she has green-card, or after she becomes a US Citizen which could be 4-5 years after marriage.

 

Here are the facts:

 

Form I-130 instructions:

Who May File Form I-130?

 

1. If you are a U.S.citizen you must file a separate Form I-130 for each eligible relative. You may file a Form I-130 for:

 

B. Your unmarried child under age 21;

C. Your unmarried son or daughter age 21 or older;

 

2. If you are a lawful permanent resident of United States, you may file this form for:

 

B. Your unmarried child under age 21;

C. Your unmarried son or daughter age 21 or older.

 

Who May Not File This Form I-130?

 

3. A stepparent or stepchild, if the marriage that created the relationship took place after the child's 18th birthday.

http://www.uscis.gov/files/form/I-130instr.pdf

 

From State:

UNLIMITED FAMILY-BASED

 

Immediate Relatives of U.S. Citizens (IR): The spouse, widow(er) and unmarried children under 21 of a U.S. citizen, and the parent of a U.S. citizen who is 21 or older.

 

LIMITED FAMILY-BASED

 

Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their children, if any. (23,400)

 

Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (over age 20) of lawful permanent residents. (114,200) At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder will be allocated to unmarried sons and daughters.

http://travel.state.gov/visa/immigrants/ty...types_1306.html

 

US Citizen filing for step child if marriage is before 18th birthday gets Unlimited visa class. If after 18th birthday, then child will fall into Limited class.

 

Look at current visa bulletin to get an idea how long Limited Class visas are taking to get.

 

http://travel.state.gov/visa/frvi/bulletin...letin_1360.html

Edited April 23, 2008 by dnoblett (see edit history)

[Sebastian]

If I were you, I'd go to the courthouse, and get married within 2 days of her arrival, then file the I-130 paperwork AS SOON AS YOUR MARRIAGE CERTIFICATE IS AVAILABLE, THEN have a 'grand' wedding ceremony on the 17th.

 

The time window is too tight, imo, and I think, what you really need, is a NOA1 from HIS I-130, with a date/time stamp prior to his 18th birthday, to have any real luck of the process working in your favor.

 

Just my 20 RMB.

Edited April 23, 2008 by Darnell (see edit history)

[Randy W]

Slow down here, people.

 

He's a K-2, follow to join. The only requirement is that he interview for AND USE the K-2 visa within 1 year of the date his mother enters the US.

 

Jim - not true. The K-2 can file the P-3 and 4 paperwork anytime during the 365 day period.

 

But, yes, get married BEFORE he turns 18 so that the I-130 (filed by his step-father) can be used as a back-up in case the K-2 doesn't happen.

 

Aging out is NOT an issue as long as the I-130 is FILED before his 21st birthday, IF it becomes necessary.

Edited April 23, 2008 by Randy W (see edit history)

[jim_julian]

Thanks Randy ... I deleted my post so as not to confuse people in the future.

 

You're right ... they should file the K-2 paperwork and I'd recommend that they do that before she leaves China.

[moonglare]

Thanks Randy ... I deleted my post so as not to confuse people in the future.

 

You're right ... they should file the K-2 paperwork and I'd recommend that they do that before she leaves China.

 

 

Thanks everyone this is very useful information.

 

-moonglare

[Sebastian]

He's a K-2, follow to join. The only requirement is that he interview for AND USE the K-2 visa within 1 year of the date his mother enters the US.

Duh, I missed it (K-2), boy do I feel small-brained today.

[jim_julian]

He's a K-2, follow to join. The only requirement is that he interview for AND USE the K-2 visa within 1 year of the date his mother enters the US.

Duh, I missed it (K-2), boy do I feel small-brained today.

 

Welcome to the club, we even did a K-2 FTJ!

[moonglare]

I found this pdf file that clears up the 18 vs. 21 year old confusion I had regarding K2 minors.

 

 

"A 3/15/07 Memorandum from Michael Aytes, Deputy Director, Domestic Operations, on adjustment of status for K-2 aliens reminds officers that the applicant is not required to demonstrate a step-parent/step-child relationship with the petitioner"

 

http://www.peterli.us/Content/PDF/K2-AOS.pdf

 

Interoffice Memorandum

To: Service Center Directors

Regional Directors

District Directors

Officers-In-Charge

From: Michael L. Aytes /s/

Associate Director, Domestic Operations

Date: March 15, 2007

Re: Adjustment of Status for K-2 Aliens

 

1. Purpose

The purpose of this memorandum is to remind officers that K-2 aliens seeking to adjust

status are NOT required to demonstrate a step-parent/step-child relationship with the

petitioner. A K-2 alien who is over 18 years of age may adjust status provided they

satisfy the requirements for adjustment of status under Section 245 of the Immigration

and Nationality Act (INA). Officers should follow the regulations at 8 CFR

 

214.2(k)(6)(ii) regarding adjustment of status for K-2 aliens.

The Immigration and Marriage Fraud Amendments of 1986 created a gap regarding the

procedure for a K-2 alien to adjust status to that of a person admitted for permanent

residence.1 The agency has filled the gap with the controlling regulation at 8 CFR

214.2(k)(6)(ii), which reads:

 

 

Upon contracting a valid marriage to the petitioner within 90 days of his or her admission as a

nonimmigrant pursuant to a valid K-1 visa issued on or after November 10, 1986, the K-1

beneficiary and his or her minor children may apply for adjustment of status to lawful permanent

resident under section 245 of the Act. Upon approval of the application the director shall record.