EWI stepchildren under 21 of USC Step-parent

[Bengalita 12]

Question:

2 stepchildren of a USC parent would like to become residents. However, they will need to return to Mexico in order to do the process since they are EWI. They EWI'd when they wre both 5 and 7 years old respectively, and now one is 17 and the other is 19. They have never re-entered to the USA after their first EWI about 15 years ago. No criminal records either.

Here are my questions:

If they return to Mexico....

1) Will the 17 year old need an I-601 Hardship Waiver since he's a minor still? If not, am I correct in assuming that he will go to his interview and pretty much get his I-501 stamp provided there are no other factors that impede this?

2) Am I correct in assuming that the 19 year old will need an I-601 Hardship Waiver?

3) Am I correct in assuming that if the hardship isn't something of an emergancy nature, she could expect to be in Mexico for about 1 year, provided there are no other factors that would get her the 10 year bar?

4) If the 19 year old at some point turned 21 during all of this, am I correct in assuming that she will be put under a different category for children over 21 of USC parents?

4a) If she does turn 21, and when her case IS, in fact worked, is there a I-601 waiver for children over 21 of USC parents?

Thank you for your replies.

[JimVaPhuong 4,863]

EWI children begin to accrue unlawful presence on their 18th birthday. Once they have accrued 180 days then it's an automatic 3 year bar. Once they've accrued one year then it's an automatic 10 year bar.

The 17 year old must leave the US before 180 days after her 18th birthday in order to avoid a bar. The 19 year old will receive a 10 year bar the day she leaves the US. The 19 year old will need an I-601 waiver.

The consulate in CDJ used to have a pilot program that allowed them to process I-601's in a matter of weeks. I'm not sure if that program is still in effect. Basically, she'll go to the interview, be denied because of the ban, submit the I-601 and supporting evidence. If the pilot program is still in effect then she should get a decision on the waiver within a few weeks.

If the USC married the biological parent before the 19 year old was 18 then the USC can petition for the 19 year old. Their age will be locked on the day the petition is received by USCIS, so they must submit the petition before the 19 year old becomes 21. This will preserve their eligibility in the CR2/IR2 immediate relative category, and they won't have to wait for a priority date in order to immigrate.

An I-601 is the same for a relative of any age. The hardship that must be proven is to a qualifying US citizen or LPR relative - spouse or parent. It's possible that age could play a factor in determining if the claimed hardship exists, but it doesn't change the type of waiver required.

[Bengalita 12]

Hello. Thank you for your reply. Yes, the marriage took place before any of the children turned 18, so that is not a problem. I don't understand why the USC parent did not petition before these children were so close to the turning point ages (18 and 21).

Question: If a USC child wants to petition for their EWI parent, even though the EWI parent is in an immediate visa category, am I correct to assume that there is no waiver for the parent unless the parent has a SPOUSE or a PARENT who is a USC or a Permanent Resident?

And provided there is a waiver for such, the USC or LPR parent or spouse must prove hardship in this case, right?

Thanks!!!!

[aleful 1,905]

Hello. Thank you for your reply. Yes, the marriage took place before any of the children turned 18, so that is not a problem. I don't understand why the USC parent did not petition before these children were so close to the turning point ages (18 and 21).

Question: If a USC child wants to petition for their EWI parent, even though the EWI parent is in an immediate visa category, am I correct to assume that there is no waiver for the parent unless the parent has a SPOUSE or a PARENT who is a USC or a Permanent Resident?

And provided there is a waiver for such, the USC or LPR parent or spouse must prove hardship in this case, right?

Thanks!!!!

as you stated, there are no waivers of EWI parents, children do not qualify for the waiver and submit the hardship letter. if they leave, they will trigger the 10 year ban.

[JimVaPhuong 4,863]

Hello. Thank you for your reply. Yes, the marriage took place before any of the children turned 18, so that is not a problem. I don't understand why the USC parent did not petition before these children were so close to the turning point ages (18 and 21).

Question: If a USC child wants to petition for their EWI parent, even though the EWI parent is in an immediate visa category, am I correct to assume that there is no waiver for the parent unless the parent has a SPOUSE or a PARENT who is a USC or a Permanent Resident?

And provided there is a waiver for such, the USC or LPR parent or spouse must prove hardship in this case, right?

Thanks!!!!

Immigration law makes a distinction between children and sons or daughters. Children are under 21, and are not eligible to petition for anyone. Sons or daughters are 21 years old or older, and if they are USC's then they can petition for their parents. An EWI parent cannot adjust status in the US, and if they have accrued enough unlawful presence then they'll receive a ban when they leave. The law is quite specific that a qualifying relative for an I-601 waiver request is a spouse or parent - not a son or daughter or any other relative. The hardship must be on the qualifying USC or LPR relative. The waiver is a concession the law provides to the qualifying relative. The law doesn't care if there's a hardship on the beneficiary.

If the parents want to obtain legal status then they're going to have to wait out the ban. The sooner they leave the US, the sooner they'll be eligible for a visa.

[Bengalita 12]

Hello. Thanks for your reply. Ok, I think I understand now. I get a little confused sometimes.

So, tell me if I'm right in assuming this.

A USC son/daughter (over 21) wants to petition a Mexican EWI parent. The EWI parent must return to Mexico. The EWI parent automatically has a 10 year bar. The only way that the 10 year bar could be waived is if the EWI parent has a spouse who is a LPR or a USC, or if the EWI parent has a PARENT who is a LPR or a USC. Correct?

If the EWI parent of the USC son/daughter does NOT have a USC/LPR spouse or parent, the EWI parent must wait 10 years in Mexico before being eligible for an immigrant visa. Correct?

If a USC parent wants to petition a 19 year old EWI child, the EWI child must return to Mexico with a 10 year bar. The EWI child could be eligible for a I-601 waiver provided the USC parent could prove hardship. Hardship must be proven for the parent, not for the 19 year old. Correct?

Thanks so much for your replies. Sometimes my friends ask me questions and I like to explain things straight up, you know? Thanks again!

[JimVaPhuong 4,863]

Hello. Thanks for your reply. Ok, I think I understand now. I get a little confused sometimes.

So, tell me if I'm right in assuming this.

A USC son/daughter (over 21) wants to petition a Mexican EWI parent. The EWI parent must return to Mexico. The EWI parent automatically has a 10 year bar. The only way that the 10 year bar could be waived is if the EWI parent has a spouse who is a LPR or a USC, or if the EWI parent has a PARENT who is a LPR or a USC. Correct?

Basically, yes. There are other ways that the bar can be waived, but the circumstances are somewhat rare and usually not worth mentioning. For example, someone applying for temporary protected status, or someone self-petitioning on the basis of being an abused spouse of a US citizen or permanent resident.

If the EWI parent of the USC son/daughter does NOT have a USC/LPR spouse or parent, the EWI parent must wait 10 years in Mexico before being eligible for an immigrant visa. Correct?

They don't have to remain in Mexico. They just aren't allowed to enter the US. They are inadmissible to the US for 10 years.

If a USC parent wants to petition a 19 year old EWI child, the EWI child must return to Mexico with a 10 year bar. The EWI child could be eligible for a I-601 waiver provided the USC parent could prove hardship. Hardship must be proven for the parent, not for the 19 year old. Correct?

Yes.

Here's the quirk in this whole situation. The 3-year and 10-year bar establish an inadmissibility on the alien. As long as the inadmissibility exists then they cannot be admitted into the United States, though there may be circumstances where they could be temporarily paroled into the United States. However, the bar doesn't take effect until they actually leave the United States, so it follows that the inadmissibility also doesn't exist until they leave the United States. For someone who is already in the United States, and who has accrued enough unlawful presence to incur the bar, this provides a very strong incentive for them NOT to leave the US. Do you see the irony in this? The law actually encourages them to continue staying illegally, or find a way to legalize their status, because the punishment kicks in on the day they try to do the right thing and leave.

Anyway, an EWI can't adjust status, so there's no way they can fix this situation as long as they stay in the US.

[Bengalita 12]

Ahh, great. Thanks very much for your reply! Now I think I caught it!