Adjustment of Status from Visa Waiver w/child and other related questions

[charlienlaura10 0]

Hello Visa Journey!

Ok here's a hypothetical scenario, man enters on a vwp with a 7 year old child to visit his girlfriend. Man has sole custody of his child. Has another child at home staying with grandparents. Man and his girlfriend get pregnant and during this visit decide to marry and adjust status.

So, what are the documents needed for child and man visiting to adjust and what would the total cost be? Should the child staying with grandparents be included on documents? Evidence of relationship, are you suppose to add your new spouse to your lease, bank account, ect.. before sending paperwork off? (How can you do that a. in such short time and b. before spouse has social security card ect..)

Can child visiting be enrolled in public school before paperwork is sent? When should this happen and how should this happen?

Ok and let's talk worse case scenario, say man and child are denied. What happens next? Are they deported? Are they allowed to apply for a like a marriage visa? Will they be allowed to visit on the visa waiver program again. (KEEP IN MIND, MAN HAS NOT OVERSTAYED VWP, HE SIMPLY MARRIED AND APPLIED FOR ADJUSTMENT).

Ok people thanks for your help. I simply ask you read everything carefully and answer thoughtfully.

[LiLMermaid 2]

The child is not allowed to attend school as a visitor. You can only attend school on an F-1 visa and then thats for private not a public school. Illegals do it all the time but that doesn't mean that they got approved at the end of the day either. Adjustment of status is 1010 + 600 for the child. You don't make it clear if the child with the Grandparents is going to join you later. If so then you'd have to apply for a visa for him/her later after your adjustment of status is complete. You're looking at a long time of being separated from that child. Also since you came in on the vwp if you're denied I don't think that you can appeal the decision. That would be it...you would be deported. They would not let you back in again on the vwp. You should leave and go home and apply for a CR-1 visa. It means you'd be separated from your wife for awhile ...possibly up to her due date. I'm not sure how long CR-1s are taking from your country. It would probably be shorter then the time you'd be separated from the child not with you now though.

[JimVaPhuong 4,863]

The man and child would need the same documents they would need for any other I-130/I-485 filing. Birth certificates, divorce decrees, marriage certificate from qualifying marriage to USC, tax returns for affidavit of support, etc.

Immigrating the child is a problem. In most countries, being granted sole custody does not revoke the parental rights of the non-custodial parent. I'm not sure how this is handled in an AOS case, but if the child were applying for an immigrant visa abroad then a quit claim from the non-custodial parent is usually required allowing the child to immigrate. Allowing the child to adjust status without this might be a violation of the Hague convention on international child abduction.

If any form says "list all children" then the child staying with grandparents abroad should be listed, but no AOS application should be submitted for that child. If the child is under 18 then the USC could submit an immigrant visa petition for the child. If approved, the visa application would be submitted at a US consulate abroad.

USCIS is somewhat reasonable when it comes to evidence of a relationship. They realize people who have been married and living together for a reasonably short time will have a limited amount of evidence. Comingling of finances is difficult when the immigrant cannot work and can't get a bank account with an SNN.

Attempting to adjust status after a VWP entry is risky. The I-94W which the alien signed is like a loaded gun. It gives USCIS absolute authority over the AOS case, with no recourse, review, or appeal. Their decision is final - there will be no administrative appeal, no day in front of an immigration judge, no Board of Immigration Appeals. If the IO says "no", then everything stops right there.

If the AOS is denied then they usually give you a month or so to depart voluntarily before they begin deportation. I saw one of those denial letters once, and the wording isn't pretty. Something like "YOU ARE NOW IN THE UNITED STATES IN VIOLATION OF THE LAW AND MUST DEPART IMMEDIATELY", or something like that.

Whether an AOS denial will make the alien ineligible for a spousal visa depends on the reason for the denial. If it's denied because USCIS concludes that the alien misrepresented their intentions on the I-94W, then there will likely be a "material misrepresentation" in their file. This would make them inadmissible, effectively with a lifetime ban. The USC could submit a spousal visa petition, but the alien will be denied at the interview because of the ban. The USC could then submit a hardship waiver petition to try to overcome the ban. A very good lawyer is recommended in this event because these waivers are usually denied. Whether or not the alien receives a ban, it's highly unlikely they will ever be able to use the VWP again.

Whether the child can attend school I think depends on state law, and maybe even the school district. Schools in California don't require proof of lawful presence for children to attend school. They only require evidence that the child is living in the school district, like a utility bill with an address inside the district. Colleges and universities are a different story. They require proof of lawful presence before they'll admit you.

[charlienlaura10 0]

The child is not allowed to attend school as a visitor. You can only attend school on an F-1 visa and then thats for private not a public school. Illegals do it all the time but that doesn't mean that they got approved at the end of the day either. Adjustment of status is 1010 + 600 for the child. You don't make it clear if the child with the Grandparents is going to join you later. If so then you'd have to apply for a visa for him/her later after your adjustment of status is complete. You're looking at a long time of being separated from that child. Also since you came in on the vwp if you're denied I don't think that you can appeal the decision. That would be it...you would be deported. They would not let you back in again on the vwp. You should leave and go home and apply for a CR-1 visa. It means you'd be separated from your wife for awhile ...possibly up to her due date. I'm not sure how long CR-1s are taking from your country. It would probably be shorter then the time you'd be separated from the child not with you now though.

This is a hypothetical scenario, please dont address as if i am the man in question. I am not even a man, thank you. Isnt there another fee of $300ish for something else? You haven't answered the question about school. I mean at what point would the child need to be enrolled in school? After the paperwork has been sent off? Or after approval?

[charlienlaura10 0]

The man and child would need the same documents they would need for any other I-130/I-485 filing. Birth certificates, divorce decrees, marriage certificate from qualifying marriage to USC, tax returns for affidavit of support, etc.

Immigrating the child is a problem. In most countries, being granted sole custody does not revoke the parental rights of the non-custodial parent. I'm not sure how this is handled in an AOS case, but if the child were applying for an immigrant visa abroad then a quit claim from the non-custodial parent is usually required allowing the child to immigrate. Allowing the child to adjust status without this might be a violation of the Hague convention on international child abduction.

What if the child in question was taken from the non custodial parent do to abuse and neglect and has been court ordered with a restraining order never to contact or see the child again, years ago and the parent in question isnt even traceable?

If the AOS is denied then they usually give you a month or so to depart voluntarily before they begin deportation. I saw one of those denial letters once, and the wording isn't pretty. Something like "YOU ARE NOW IN THE UNITED STATES IN VIOLATION OF THE LAW AND MUST DEPART IMMEDIATELY", or something like that.

Whether an AOS denial will make the alien ineligible for a spousal visa depends on the reason for the denial. If it's denied because USCIS concludes that the alien misrepresented their intentions on the I-94W, then there will likely be a "material misrepresentation" in their file. This would make them inadmissible, effectively with a lifetime ban. The USC could submit a spousal visa petition, but the alien will be denied at the interview because of the ban. The USC could then submit a hardship waiver petition to try to overcome the ban. A very good lawyer is recommended in this event because these waivers are usually denied. Whether or not the alien receives a ban, it's highly unlikely they will ever be able to use the VWP again.

How can you get a lifetime ban if you apply within your status time frame, its my understanding that bans come with overstays, and overstays start at 6months to a year, 3 year ban, and more than that is 10 years. I mean a lifetime ban, are you sure about that??

Whether the child can attend school I think depends on state law, and maybe even the school district. Schools in California don't require proof of lawful presence for children to attend school. They only require evidence that the child is living in the school district, like a utility bill with an address inside the district. Colleges and universities are a different story. They require proof of lawful presence before they'll admit you.

So at what point do you feel it is ok for the child to be enrolled?

[charlienlaura10 0]

So at what point do you feel it is ok for the child to be enrolled?

Sorry, I responded with some questions with the quote above.

[JimVaPhuong 4,863]

So at what point do you feel it is ok for the child to be enrolled?

It depends on where you are and what the law is. As I said, in California there is no requirement that a child have lawful presence in order to attend public schools. In fact, the law requires ALL children to attend public school until they are 18, or graduate from high school, or get permission from the district administrator to attend a private school or home school. California tends not to hold the immigration violations of parents against their children, but some states are much less hospitable.

I imagine the school district where you live has a website. Read the admission requirements there.

[ValerieA 350]

This is a hypothetical scenario, please dont address as if i am the man in question. I am not even a man, thank you. Isnt there another fee of $300ish for something else? You haven't answered the question about school. I mean at what point would the child need to be enrolled in school? After the paperwork has been sent off? Or after approval?

Hi, charlienlaura. You are correct, for AOS you have to submit an I-130 also, which currently costs $355. I am sorry I can not help you with your questions about the child and school enrollment.

[belinda63 3,038]

As to the filing of the paperwork I refer you to the guides. For the person's in the US it would be an adjustment of status and for the child overseas it would be the I-130 application for a visa. If the AOS is denied the person will be required to leave the US. If there is an overstay of more than 180 days from the time the I-94 states they need to leave it is NOT forgiven if AOS is denied. If there is an overstay on the vwp the person is no longer eligible and must apply for a tourist visa. You may file for a spousal visa if the AOS is denied but if there is an overstay there will be a waiver required.

As to the child's schooling Jim has given you the best answer he can, it is up to the individual school district.

Biggest problem would be potential international child abduction charges (I know I would be mad if my ex took my child to another country). You should try to secure a notarized statement from the child's mother giving permission for the child to live in the US.

[charlienlaura10 0]

As to the filing of the paperwork I refer you to the guides. For the person's in the US it would be an adjustment of status and for the child overseas it would be the I-130 application for a visa. If the AOS is denied the person will be required to leave the US. If there is an overstay of more than 180 days from the time the I-94 states they need to leave it is NOT forgiven if AOS is denied. If there is an overstay on the vwp the person is no longer eligible and must apply for a tourist visa. You may file for a spousal visa if the AOS is denied but if there is an overstay there will be a waiver required.

As to the child's schooling Jim has given you the best answer he can, it is up to the individual school district.

Biggest problem would be potential international child abduction charges (I know I would be mad if my ex took my child to another country). You should try to secure a notarized statement from the child's mother giving permission for the child to live in the US.

In this particular scenario, the children were removed from the home of the mother by officials and the mother was court ordered not have any contact (or any children for that matter) with them again due to serious charges of child abuse and neglect. The father had to seperately make his case to the court to be awarded custody. So it's almost like he had to adopt his own children. So thanks for your opinion Belinda, but surely in this case the mother has no say. Not to mention this was over 5 years ago and last heard the mother was a drug addict prostitute on her way to the grave.

[USUY2010 4]

I would recommend a lawyer CharlieandLaura, either that or getting married and filing for CR1. As people repeatedly said I don't know which state you're at but were I am I can't go to state college until I get a Greencard and it's pretty boring, also I can't work or drive. So this hypothetical woman would be supporting a child and a husband (above poverty line) for a good amount of months while the paperwork is filed and you get an interview and such, not to mention that there'd be another child living in a different country.

I guess every person has a reason to do things the way the do them, so this kind of decisions are very personal, but I'd be thinking a lot about the children. Other than that as everyone here said. The wife should file I-130 for husband and one for the child, husband would want to file I-485 together with working permit.

[JimVaPhuong 4,863]

In this particular scenario, the children were removed from the home of the mother by officials and the mother was court ordered not have any contact (or any children for that matter) with them again due to serious charges of child abuse and neglect. The father had to seperately make his case to the court to be awarded custody. So it's almost like he had to adopt his own children. So thanks for your opinion Belinda, but surely in this case the mother has no say. Not to mention this was over 5 years ago and last heard the mother was a drug addict prostitute on her way to the grave.

In most cases, agencies of the US government will not get involved in interpreting decisions by courts in other countries. There are some exceptions, of course. In some countries, being granted sole custody has the parallel effect of revoking the parental rights of the non-custodial parent. The US consulates in those countries are usually aware when this is the case, and will often accept an order of sole custody in lieu of a quit claim from the non-custodial parent. In many other countries, an order of sole custody alone does not revoke the non-custodial parent's rights. This is the case in the United States, for example, where a separate order vacating the parent's rights is required.

I personally know a case here in the US very similar to the one you describe. The father received sole physical and legal custody. The mother was a drug addict, and was permitted only supervised visitation with their child. Even with that order in place, the father required the permission of the mother to take the child outside the state for any reason. The father also required the permission of the mother to move permanently to another county in the same state. Only someone who read and understood the court order and relevant laws would know where the father's authority ended.

While US consulates in foreign countries may have some knowledge of the local custody laws, it's less likely that an IO in the US would be aware of them. Frankly, I have no idea how they'd handle an AOS application for the child in this case. I think it's reasonable to assume they may ask for a quit claim from the mother.

Can they really order a mother not to have children? I thought only countries like China could do something like this.

[charlienlaura10 0]

I don't think you understand, she was more than a drug addict, she severly abused and neglected them to horrific proportions, not only is she not allowed anything these children, any child born to her there after is to be taken into custody immediately. She has had two babies after and they were both taken at birth. This is England not a third world country we talking about. So I mean I appreciate your knowledgable advise but do you really think the united states won't recognize such a horrific case?

[charlienlaura10 0]

Also, the so called mother in question has not been in the picture for over 5 years! Like no one even knows where she is. It would near impossible to get any kind of statement or permission from her. She doesn't want these children! She made zero attempts to appeal the decisions made about them zero! I'm pretty sure she was happy to be rid of them. What about when people adopt abandoned children from other countries do they have to go seeking the natural parents?? Also, I mean if it's an issue of abduction across borders or whatever, wouldn't thean in question have to have permission to bring the child over in the first place?

[USUY2010 4]

Well I think everyone here was referring to the child that's already in the US.

Also I'd like to point out that there's no need to get upset about anything, people here are trying to help to their knowledge, if you think you know everything already and you're positive that this hypothetical case would be approved cause the mother has disappeared then tell this hypothetical couple to just go ahead and file and don't listen to what nice people are saying to help the case.