Denied due to Step Child

[Gary and Alla 3,694]

And just to add my step mom petition my brother when he was 20 years old of age and got the appoitment year 1996 and left 1997. How come there's no law apply the 18 years old. Weird!!! I forget to tell this to the consul because i got frustrated... Damn!!!

If it was a K-1, they are eligible for a K-2 up until the age of 21. was your father a K-1? And your brother a K-2? That would explain it.

an approved petition does not guarantee an approved petition.

I would ask for a money back guarantee or contingency from the attorney. As Penguin suggests, ask him if he will do it on contingency. This means he gets paid if you get the visa and not if you don't.

[h0tgunn 1]

Since this lawyer is so sure you will win, make an agreement with him to only pay him once you get the visa. See how quickly he changes his tune.

It's ok hes famous here in our country and won so many cases even won the worst case. Though expensive.

[Deputy Purple 1,294]

It's ok hes famous here in our country and won so many cases even won the worst case. Though expensive.

If his grounds to appeal is that you didn't know about the "marriage must happen prior to your 18th birthday for your step-mom to petition you" then I hate to say this but it simply won't work. In US Law there's a concept, "Ignorance of the law is no excuse" which means you don't get a pass on the law applying to you because you don't know it.

A mistake was made by USCIS but you weren't hurt or caused a loss by it. An approved petition is no guarantee of a Visa ever being issued. I'll agree with Penguin_ie, if the Lawyer is so confident then he should not accept a single Php in payment until your Visa is issued. In fact I'd go one step further and ask him to give you a written commitment that he'll provide defense lawyer expenses for your brother if his pressing your case causes USCIS to revisit his case and order him deported.

Sure you have nothing to lose as you've been denied but are you willing to risk your brother's status in the US on the word of a lawyer (not even a US Lawyer) that he can overcome the fact that you were properly denied for a Visa that you're not qualified to receive?

[Boiler 45,525]

Whilst it is a possibility I remain unconvinced that they will connect a seperate petition so many years ago.

But I am intrigued to know what happens, please keep us updated.

[h0tgunn 1]

If his grounds to appeal is that you didn't know about the "marriage must happen prior to your 18th birthday for your step-mom to petition you" then I hate to say this but it simply won't work. In US Law there's a concept, "Ignorance of the law is no excuse" which means you don't get a pass on the law applying to you because you don't know it.

A mistake was made by USCIS but you weren't hurt or caused a loss by it. An approved petition is no guarantee of a Visa ever being issued. I'll agree with Penguin_ie, if the Lawyer is so confident then he should not accept a single Php in payment until your Visa is issued. In fact I'd go one step further and ask him to give you a written commitment that he'll provide defense lawyer expenses for your brother if his pressing your case causes USCIS to revisit his case and order him deported.

Sure you have nothing to lose as you've been denied but are you willing to risk your brother's status in the US on the word of a lawyer (not even a US Lawyer) that he can overcome the fact that you were properly denied for a Visa that you're not qualified to receive?

Thanks for the response Bob - Ignorance of the law is no excuse.. If that's the case USCIS or NVC should guide the applicant since they should be the one to uphold the immigrant law on the first place before further damages. Right? It's a case to case basis. With regards to my brother,, hhmmm ,,, why we need to include him in the case? he's not included for the defense and i don't see any risk... Ofcourse I take the word of the lawyer that his job. You said you weren't hurt? For 15 years? Am I a robot? Peace...

Edited October 17, 2011 by h0tgunn

[Leatherneck 693]

Thanks for the response Jim! I dont know maybe theyre not aware of the step child ruling if there is. They just filed our petition together with our birth certificates and it was approved. So you are saying the ruling of the step-parent petition to a step-child is already in the law on the late years??? Maybe someone can show the act of this immigation law together what year regarding step child petition, then i'll truly believe there is...

I can understand your frustration over the denial of your petition and wasting 15 years waiting for an approval. As mentioned before, the USCIS determined there was a stepchild relationship as a result of your father's marriage to your stepmom.

Also, a visa petition is only used to demonstrate a qualifying relationship. An approved petition does not grant any benefit, it simply creates a place in line for visa processing...per USCIS.

You wanted to see the section of the 1996 Immigration and Nationalization Act pertaining to "stepchild." There is no "stepchild petition," only a stepchild relationship as a result of marriage.

There are amendments to sections of the current act, (with footnotes listed for reference) but no other Immigration Act since 1996 to supercede the currrect INA.

Note the relevant section that pertains to your case, you can read the entire section if you wish. Note the link to USCIS below.

Act 101(b)(1)

(b) As used in titles I and II-

(1) The term "child" means an unmarried person under twenty-one years of age who is-

(A) a child born in wedlock;

(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

Now that you have the section of the Immigration Act pertaining to "stepchild," you've read it here and can now read it on the USCIS website yourself, hopefully it will be of help to you.

I'm not sure how any lawyer can change the fact you were never eligible to immigrate with regards to being a "stepchild" based on your age at the time. The 20 year old brother you mentioned, slide under the radar on oversight. Anyway, good luck to you.

http://www.uscis.gov.../0-0-0-434.html

[Leatherneck 693]

Also, here is "child" as defined on the USCIS website.

Child

Generally, an unmarried person under 21 years of age who is: a child born in wedlock; a stepchild, provided that the child was under 18 years of age at the time that the marriage creating the stepchild relationship occurred; a legitimated child, provided that the child was legitimated while in the legal custody of the legitimating parent; a child born out of wedlock, when a benefit is sought on the basis of its relationship with its mother, or to its father if the father has or had a bona fide relationship with the child; a child adopted while under 16 years of age who has resided since adoption in the legal custody of the adopting parents for at least 2 years; or an orphan, under 16 years of age, who has been adopted abroad by a U.S. citizen or has an immediate-relative visa petition submitted in his/her behalf and is coming to the United States for adoption by a U.S. citizen.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5b05136d2035f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD

[Deputy Purple 1,294]

Than Ignorance of the law is no excuse.. If that's the case USCIS or NVC should guide the applicant since they should be the one to uphold the immigrant law on the first place before further damages. Right?

Wrong, the onus of knowing the laws is on you as applicants (both petitioner & beneficiary). By your logic a cop should be following each of around all day to advise of what is and isn't legal. If you can't understand the laws then you should hire a professional who does period.

With regards to my brother,, hhmmm ,,, why we need to include him in the case? he's not included for the defense and i don't see any risk...

Because your brother was petitioned by the same petitioned at or around the same time there is a chance that when reviewing your petition they'll also review the other petitions filed by your step-mom.

How will you explain it to him if you cause him to get deported?

Ofcourse I take the word of the lawyer that his job. You said you weren't hurt? For 15 years? Am I a robot? Peace...

Did your family use a lawyer in 1996?

As for the damages you claim, if you really just put your life on hold for 15 years instead of dating working and enjoying daily life then that's a decision you made based on an assumption that USCIS clearly tells all applicants to not make. Just look at any US Embassy website Immigrant Visa section, they all advise the beneficiaries to NOT MAKE ANY PLANS until they actually have a Visa in hand. Your bad choices are your own fault.

[Boiler 45,525]

What about you Parent?

[JimVaPhuong 4,863]

Thanks for all your inputs! We have a strong case to appeal or reconsideration. Lawyer was right, you can't just throw out the 15 years of waiting because of a simple stepchild rules as most normal petitioners are not aware on this ruling. He says all of us have a very limited information at year 1996 as technology for information is so limited unlike year 2000. You only know the preference saying unmarried son and daughter of us citizen with age 21 and above. There's no unmarried step son and daughter of US citizen with age 17 and below as you already consider you son and daughter of the stepchild if you married the biological father or mother... The petition are filed and process with legitimate papers and in fact it reaches the PD in finalizing the documents and process to check if there's inconsistency and ineligibility. The document showed that petitioner is a step-parent. I remember the NVC is requesting again another AOS due to inconsistency. It proves that they are studying the documents and why disregard the stepchild rules. The DS230 shows that I have a biological mother. It also has the marriage certificate of my stepmom and dad (i saw this during interview). It's very obvious that my birthdate and the date of marriage shows the ineligible of the petition as a stepchild. I can't disclose yet here some statements of the lawyer. :-) But it enlighten my family. One thing he has the humanitarian reconsideration of my little sister who's 60% coma... But the error in processing the petition itself is already a strong case. This is just a simple case not some case is complex like fraud which they reconsider. Once the appeal is granted and reconsider, I'll be scheduled by another interview. It will take 90 days... Thats ok for me since my plan is to go 1st quarter next year even i got the visa.

I'll update you guys once I got the status of the appeal. :-)

Leatherneck has already pointed this out, but I'll reiterate.

The law is not as vague as your attorney is trying to imply. The law does not define each term used at every point in which it is used. Most of the terms used throughout the law are defined in section 101 of the INA. According to the definition in section 101, there is no step-parent/step-child relationship between you and your step-mother that can be recognized for immigration purposes. She wasn't eligible to petition for you at the time the petition was submitted.

The argument that the law was not clear in 1996 because of a lack of technology is ludicrous. The laws were written in books and published, and every person had access to those books. Every immigration attorney had a copy of those books on his shelf. US courts managed to function just fine for hundreds of years without computers and the internet.

As far as an "appeal", who the heck are you appealing to? There is no appeals process for a consular officer's decision. Their decisions are not subject to review by anyone.

Either USCIS clearly erred when they approved the petition, which is what it looks like based on what you've told us so far, or there are details missing that you haven't told us about.

Bob is correct about damages. In the eyes of the law you were not harmed. You weren't an immigrant before the visa was denied, and you're not an immigrant now. Nothing changes for you, therefore, you were not harmed.

I'd still like to know why your father didn't submit a petition for you.

[Boiler 45,525]

I'd still like to know why your father didn't submit a petition for you.

That keeps on getting ignored.

[Jojo92122 1,924]

Thanks for the response Bob - Ignorance of the law is no excuse.. If that's the case USCIS or NVC should guide the applicant since they should be the one to uphold the immigrant law on the first place before further damages. Right? It's a case to case basis. With regards to my brother,, hhmmm ,,, why we need to include him in the case? he's not included for the defense and i don't see any risk... Ofcourse I take the word of the lawyer that his job. You said you weren't hurt? For 15 years? Am I a robot? Peace...

USCIS and the NVC are not responsible for advising you what the law is. It is the petitioner and beneficiary's responsibility to know what the law is. This is why people hire lawyers to advise them. It is not USCIS or the NVC's fault that you and your family got in the wrong line. You and your family made a big mistake.

Nothing is going to happen to your brother. At this point, he probably has his US citizenship. No one is going to strip him of his US citizenship and deport him. If a mistake was made in his favor, it's not going to help you. Who has ever heard of forcing USCIS or the NVC to repeat a mistake to favor you. What happen to him is irrelevant to your case.

It will take years or decades for you to start the process over. By the time you qualify for a visa, you will be in your late 50's. Your best chance of immigrating to the US will be to challenge the approval of the I-130. INS (now USCIS) should not have approved it. You can make an argument that you would have immediately file correctly if the I-130 had been denied. INS's failure cause you harm. A good lawyer may be able to help you. However, this could be a long shot since it may take years to litigate.

Good luck to you. I wish you the best. You do need to acknowledge that both you, your family, and the INS made mistakes. Now, focus on how to fix the problem.

[Harsh_77 718]

Thanks for the response Bob - Ignorance of the law is no excuse.. If that's the case USCIS or NVC should guide the applicant since they should be the one to uphold the immigrant law on the first place before further damages. Right? It's a case to case basis. With regards to my brother,, hhmmm ,,, why we need to include him in the case? he's not included for the defense and i don't see any risk... Ofcourse I take the word of the lawyer that his job. You said you weren't hurt? For 15 years? Am I a robot? Peace...

After reading all the post, I would agree with Bob, it is applicant’s responsibility to know the law.

You can apply even if you are 40 and USCIS would accept your case and process is as a normal case and would let you know the result when you have the interview, which is exactly what they did in your case.

Just not knowing the law or not being aware of the law is not an excuse, if your immigration lawyer is telling you that you have strong case based on not knowing the law and you will win the case then I would stay away from this lawyer and not pay him a single penny until he wins the case.

[belinda63 3,038]

Respectively I must disagree Jojo. If his brother was over 18 at the time of the marriage, it was an error on the part of USCIS and the embassy to approve his visa as he did not have a petitionable relationship to the step-parent. While the chances are very slim, it would be possible for them to revoke his immigration and have him deported as he should never have been permitted to immigrate under the petition.

Appealing the case sounds good but as Jim state who are you going to appeal it to? Even if you filed some sort of lawsuit it would have to be in the US and the chances of winning are very slim. An error was made in the initial process which was discovered later. Even if the petition had been proper there is still no guarantee you would have received a visa.

I am sorry this happened to you and you have placed your life on hold while waiting. At this point I really don't see that there is anything you can do but put it behind you and move forward with your life.

[Deputy Purple 1,294]

Whilst it is a possibility I remain unconvinced that they will connect a seperate petition so many years ago.

If I point a loaded gun at my brother's head I remain unconvinced that I would actually pull the trigger BUT I still would never do it because there is always a slim chance that something could happen causing the gun to accidentally discharge and my brother would still be just as shot (and possibly dead) as if I had intended to shoot him.

Likewise, knowing that I don't have a chance of winning because the INA clearly states I'm not eligible for a Visa with the chosen petitioner I would never do anything foolish that might cause my brother harm.