Bringing son to the US

[chilton747]

My wife's son is thinking about wanting to come to the USA. He is now 20 and will be 21 in May 2011. My wife came to the US on an IR1 in 2008 and we were married in November of 2006.

 

What is the procedure?

[warpedbored]

Since your wife came on an IR-1 it isn't as simple as a K-1 follow to join. Your wife can file an I-130 for him but it is a second priority visa. It is unlikely that he would be able to get an interview before he turns 21. Still she can file now and hope for the best. I would put in big red letters POSSIBLE AGE OUT PLEASE EXPEDITE. She may get lucky. I'm not really sure what happens if the beneficiary ages out after the petition is filed. I suspect it would just fall into the Unmarried son or daughter over 21 category. This visa has a quota so your son would have to wait until a visa became available. Around 10 years for a green card holder. If she becomes a US citizen it would bump it up to a 1st priority visa but there is still a quota. My wife and I filed for her son two years ago. He is unmarried over 21 and my wife is a US citizen. The California service center is processing these cases from Feb 2007 so we have at least another year before we move on to the next step of the process. My best guestimate is around 4 years start to finish for a US citizen filing for an unmarried son or daughter. 8-10 years for a LPR.

[dnoblett]

How old was he when you were married??

 

From my calculations son was younger than 17 at time of marriage so YOU file the I-130 for a step child.

 

If 17 or younger you can file an I-130 for a step son, the procedure is similar as what you did for your wife. (This is an unlimited class visa, IR-2 visa and gets a visa number as soon as USCIS approves and sends the petition to NVC)

 

If 18 or older at time of marriage your wife needs to file an I-130 for her son. (This is a F2A if child is under age 21, or F2B if son is 21 or older) F2A is getting visa numbers fairly quickly (5 months) however F2B is taking on the order of 5 years to get a visa number.), Not sure if case needs to be approved and moved to NVC before aging out for them to determine F2A or F2B Again same procedure file an I-130.

 

I-130 needs a copy of:

 

• Marriage cert.
• Son's Birth cert
• Copy of proof of US Citizenship if citizen is filing the petition (Birth cert, Nat cert, or complete copy of US Passport)
• Copy of green-card if non-citizen filing the I-130

As Carl said note in big bold letters possible age out, expedite, I believe if approved and sent to NVC before age 21 will be considered as age at time of approval and could be 21 or older at interview time.

Edited November 29, 2010 by dnoblett (see edit history)

[chilton747]

Yes he was 16 when we married. So if I file this soon and the USCIS approves it and sends it to the NVC before his 21st birthday next May then age out will not be an issue?

Edited November 29, 2010 by chilton747 (see edit history)

[chilton747]

As I am reading the instructions, it says that I can file for a child but does not say specifically a step child. It does say you cannot file for a step child if he was 18 after on or before the wedding took place. In the part that talks about what documents to send, it says a copy of his birth certificate showing both the mother and father's names and our marriage certificate. Obviously the father's name on his birth certificate will not be my name. Kinda confusing to me.

Edited November 29, 2010 by chilton747 (see edit history)

[Randy W]

Since your wife came on an IR-1 it isn't as simple as a K-1 follow to join. Your wife can file an I-130 for him but it is a second priority visa. It is unlikely that he would be able to get an interview before he turns 21. Still she can file now and hope for the best. I would put in big red letters POSSIBLE AGE OUT PLEASE EXPEDITE. She may get lucky. I'm not really sure what happens if the beneficiary ages out after the petition is filed. I suspect it would just fall into the Unmarried son or daughter over 21 category. This visa has a quota so your son would have to wait until a visa became available. Around 10 years for a green card holder. If she becomes a US citizen it would bump it up to a 1st priority visa but there is still a quota. My wife and I filed for her son two years ago. He is unmarried over 21 and my wife is a US citizen. The California service center is processing these cases from Feb 2007 so we have at least another year before we move on to the next step of the process. My best guestimate is around 4 years start to finish for a US citizen filing for an unmarried son or daughter. 8-10 years for a LPR.

 

 

 

I-130's don't age-out because of the protection given the CSPA, EXCEPT when there is a quota involved (which there is, in this case). The age preserved is that when the visa number becomes available (i.e., n years from now).

 

If your wife becomes a US citizen, the category is upgraded, inclusive of the time already waited.

Edited November 29, 2010 by Randy W (see edit history)

[warpedbored]

It sounds like you may be able to file on behalf of your step son. The question is whether or not he will age out or not if the interview is after his 21st birthday.

 

Randy I don't think there is a quota for a step father filing on behalf of an under 21 step child.

[Randy W]

It sounds like you may be able to file on behalf of your step son. The question is whether or not he will age out or not if the interview is after his 21st birthday.

 

Randy I don't think there is a quota for a step father filing on behalf of an under 21 step child.

 

 

Yes - I had missed where he said that he was 16, and assumed the mother needed to file. My mistake.

 

But under the Child Status Protection Act, his status as an under 21 child (for immigration purposes) of an American citizen is frozen as of the date the I-130 is filed - he does not need to interview before age 21.

 

A step-child is referred to as a child for immigration purposes if the marriage occurred before the child became 18.

[warpedbored]

I wonder why K-2 is different. A K-2 must be under 21 at the time of the interview.

[Randy W]

I wonder why K-2 is different. A K-2 must be under 21 at the time of the interview.

 

 

 

The CSPA protects only those who have an I-130 filed. This is one of the primary reasons used by the USCIS to deny K-2's over the age of 21 - that they must have been intentionally left out of the CSPA - completely ignoring the fact that they had never needed that protection before

[chilton747]

 

 

But under the Child Status Protection Act, his status as an under 21 child (for immigration purposes) of an American citizen is frozen as of the date the I-130 is filed - he does not need to interview before age 21.

 

A step-child is referred to as a child for immigration purposes if the marriage occurred before the child became 18.

 

 

 

This is what I needed to know. Thanks Randy, Carl, and Dan!!!!

[dnoblett]

As I am reading the instructions, it says that I can file for a child but does not say specifically a step child. It does say you cannot file for a step child if he was 18 after on or before the wedding took place. In the part that talks about what documents to send, it says a copy of his birth certificate showing both the mother and father's names and our marriage certificate. Obviously the father's name on his birth certificate will not be my name. Kinda confusing to me.

 

 

http://i949.photobucket.com/albums/ad334/dnoblett/Immigration%20Stuff/I-130StepParentFiling.png

 

http://www.uscis.gov.../i-130instr.pdf

 

So copies of divorce certs are also needed in the filing.(Page 4)

Edited November 29, 2010 by dnoblett (see edit history)

[chilton747]

As I am reading the instructions, it says that I can file for a child but does not say specifically a step child. It does say you cannot file for a step child if he was 18 after on or before the wedding took place. In the part that talks about what documents to send, it says a copy of his birth certificate showing both the mother and father's names and our marriage certificate. Obviously the father's name on his birth certificate will not be my name. Kinda confusing to me.

 

 

http://i949.photobucket.com/albums/ad334/dnoblett/Immigration%20Stuff/I-130StepParentFiling.png

 

http://www.uscis.gov.../i-130instr.pdf

 

So copies of divorce certs are also needed in the filing.(Page 4)

 

 

I take it that the petitioner (myself) will have to show their divorce certs. I wonder if I need to include a divorce cert from my wife's divorce?

[chilton747]

So my step-son's classification for a visa will be an IR-2?

[dnoblett]

http://i949.photobucket.com/albums/ad334/dnoblett/Immigration%20Stuff/I-130StepParentFiling.png

 

http://www.uscis.gov.../i-130instr.pdf

 

So copies of divorce certs are also needed in the filing.(Page 4)

 

 

I take it that the petitioner (myself) will have to show their divorce certs. I wonder if I need to include a divorce cert from my wife's divorce?

 

Yep, both

 

So my step-son's classification for a visa will be an IR-2?

 

And Yep!