I-130 vs. I-129F, finding the fastes way

[pushbrk 13,027]

OK, this is sounding confusing....is there a way to find the definative answer?

I submitted the I-130 for my wife, thinking there was derivative privileges for my step-daughter, on January 21,2011. Now I find out I have to file another I-130 for my step-daughter...should I go ahead and file the I-485 with the I-130 for my step-daughter? The F-1 in Canada is an option also, but if she has the option to go home she may choose to go home, as she has been home sick lately...my wife is really missing her baby!

This seems like a complicated question/answer. I use this board as a way to avoid the additional attorney charges...but this may be folly in this instance....your opinions are always valued and appreciated.

Yanzi, Mei Mei, and Jim

I can look for a definitive answer but yes, I would "prepare" the I-130 for the step daughter and wait for a definitive answer. These issues get complicated. The student visa application asks about the status and whereabouts of her family members and if it looks like she's using the F1 to circumvent immigration laws, her student may well be denied. One the other hand, if she needs a student visa to continue school, she won't be able to obtain one IN the USA and would abandon her status adjustment if she LEAVES the USA to obtain one. It's a unique situation. Give me a day or two and I'll let you know what I find.

In the meantime, you or your daughter can check with the school to see if she can remain in school if her F1 visa expires. It's just a data point for now, not a suggestion that she stay in school and let her visa expire.

[JimYan 0]

I can look for a definitive answer but yes, I would "prepare" the I-130 for the step daughter and wait for a definitive answer. These issues get complicated. The student visa application asks about the status and whereabouts of her family members and if it looks like she's using the F1 to circumvent immigration laws, her student may well be denied. One the other hand, if she needs a student visa to continue school, she won't be able to obtain one IN the USA and would abandon her status adjustment if she LEAVES the USA to obtain one. It's a unique situation. Give me a day or two and I'll let you know what I find.

In the meantime, you or your daughter can check with the school to see if she can remain in school if her F1 visa expires. It's just a data point for now, not a suggestion that she stay in school and let her visa expire.

Many thanks for your help. She is in school for the remainder of the year and her F-1 is valid through August of this year...I sincerely appreciate the help!!! This is a complicated situation and the timing is coincidental, I hope it is not more difficult as a result of the timing on our part!

I will look froward to your reply.

XieXie,

Yanzi, Mei Mei ,and Jim

[YuAndDan 153]

OK, this is sounding confusing....is there a way to find the definative answer?

I submitted the I-130 for my wife, thinking there was derivative privileges for my step-daughter, on January 21,2011. Now I find out I have to file another I-130 for my step-daughter...should I go ahead and file the I-485 with the I-130 for my step-daughter? The F-1 in Canada is an option also, but if she has the option to go home she may choose to go home, as she has been home sick lately...my wife is really missing her baby!

This seems like a complicated question/answer. I use this board as a way to avoid the additional attorney charges...but this may be folly in this instance....your opinions are always valued and appreciated.

Yanzi, Mei Mei, and Jim

Cannot adjust status without first having parent in the USA.

Simply file another I-130 for step child, attach a copy of parent's I-130 NOA-1 letter and a cover letter explaining you did not realize there is no automatic CR-2 derivative based on the CR-1.

I see this mistake all the time with K-3/K-4 getting tripped up when they find-out there will be no K-3/K-4 because NVC kills the K-3 and proceeds on with CR-1 and no petition for CR-2 child, then having to scramble to get another I-130 filed, and holding the parent's petition at NVC until child's petition catches up..

Lastly how old was step daughter at the time of marriage? If less than 18 you can file I-130 for step child, if older then cannot anyway.

Also: when dealing with the US consulate in Guangzhou, you may want to join and study the process: Here: http://candleforlove.com

A whole thread about the new electronic process at NVC can be found here: http://candleforlove.com/forums/index.php?showtopic=37703

[JimYan 0]

You are 100% correct confusion is quite easy with this "changed process", I had no idea, and as soon as I fully understand all the changes and implications, it would be good for all that follow to have a place to go.

I will file ASAP! SHe is 17 at the time of our marriage, she just turned 18 yesterday! Based on your comments, are we ok for me to go ahead with the CR-2/I-130 application per your suggestion?

More comments and advise are completely and totally appreciated. You are all fantastic!!!

I am humbled,

Yanzi, Mei Mei, and Jim

[YuAndDan 153]

You are 100% correct confusion is quite easy with this "changed process", I had no idea, and as soon as I fully understand all the changes and implications, it would be good for all that follow to have a place to go.

I will file ASAP! SHe is 17 at the time of our marriage, she just turned 18 yesterday! Based on your comments, are we ok for me to go ahead with the CR-2/I-130 application per your suggestion?

More comments and advise are completely and totally appreciated. You are all fantastic!!!

I am humbled,

Yanzi, Mei Mei, and Jim

Yep, you will be fine, file the petition as a step parent, needed to marrybprior to 18th birthday, and file the I-130 prior to age 21.

[pushbrk 13,027]

Yep, you will be fine, file the petition as a step parent, needed to marrybprior to 18th birthday, and file the I-130 prior to age 21.

Yes, if the marriage occurred before the child turned 18, you can file an I-130 for her and as long as either a CR2 visa or adjustment to CR2 status occurs prior to age 21, she can immigrate to the USA. I took the time though to look up the applicable portion of the USCIS adjudicator's manual. I'll quote the relevant section but in short, the daughter cannot be granted adjustment of status until her mother has actually arrived in the USA with the CR1 visa. You COULD file the I-130 and I-485, I-765 and I-131 concurrently and have her obtain advance parole. The advance parole would then provide her a way to make a short trip to Canada or China to APPLY FOR a new F1 visa.

The caution I would add is that F1 is a non-immigrant visa and I would expect that her immigrant intent may well disqualify her. I think, she's going to need to interrupt her education, return to China before her F1 visa expires and wait out the CR2 with her mother.

Here is the relevant section. Please note that the term "derivative" in this context is an eligibility derived from an approved visa application AND their own approved petition, unlike the eligibility to APPLY being derived from the parent's approved petition in a K visa case. K visas are non-immigrant visas.

(k) Dependents of Adjustment Applicants and Immigrant Visa Holders .

Generally, an alien who is the spouse or child of an alien who adjusts status or obtains an immigrant visa through consular processing may apply to adjust status or be issued an immigrant visa as a derivative or dependent applicant. [Three notable exceptions to this are the dependent of an alien who immigrates or adjusts as a special immigrant under section 101(a)(27)(B) of the Act, the dependent of an alien who immigrates or adjusts as a special immigrant under section 101(a)(27)(J) of the Act, and the dependent of an alien who immigrates or adjusts through an immediate relative classification under section section 201(b)(2)(A)(i) of the Act (although a child of a deceased citizen may be included in the petition filed by such deceased citizen’s widow or widower).] Usually, but not always, the principal applicant and the dependents all seek adjustment or immigration at the same time and in the same manner. Complications can arise, and special care must be taken, in those cases where the family members are not immigrating or adjusting at the same time. Pay particular attention to the following issues:

· Status of the Principal Alien . Make sure that the principal alien has already been admitted to the U.S. with an immigrant visa, or been granted adjustment of status, before approving the dependent’s adjustment application. Also, make sure that the qualifying relationship between the principal and the dependent existed on the date the principal acquired residence and has continued to exist ever since.

· Preceding vs. Accompanying vs. Following to Join . Most visa classifications, but not all allow the dependent to either accompany or follow to join the principal alien. None of the visa classifications allow the dependent to precede the principal alien.

To be considered to be “accompanying” the principal alien, the dependent’s adjustment application must be approved within six months of the date on which the principal became a permanent resident. On the other hand, a dependent may be considered to be following to join the principal at any point after the principal’s immigration. Classifications which permit dependents to accompany but not follow to join the principal are special immigrants under

sections 101(a)(27)(D) ; 101(a)(27)(E) ; 101(a)(27); 101(a)(27)(G) ; and 101(a)(27)(H) of the Act. If a dependent of an alien who obtained residence through one of these classifications more than 6 months ago seeks adjustment as a following to join alien, the adjustment application must be denied. Such denial is without prejudice to the principal alien filing an I-130 petition and the otherwise-eligible alien adjusting as a second preference immigrant once a visa number becomes available.