IR2 in Process for Stepson, but Husband is Undocumented

[hellorebecca 0]

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Awesome community here. Thanks for sharing your stories and advice.

I am U.S. citizen and have been married to an undocumented (EWI) Guatemalan since 2006. We live in the U.S. We filed for his spousal visa and it was approved by USCIS in 2008. We are waiting to adjust his status in the U.S. (when laws change -- or we might move to Guatemala one day and take the risky approach of appealing the probable ban on his return, but I digress).

Meanwhile, just this spring we decided to try to get an IR-2 visa for his son (14 years old) who is in Guatemala. The petition was approved by USCIS and is now being processed at NVC.

Here are my questions:

1) Will there be problems at NVC because of his father's undocumented status?

2) If we do get to the interview - will there be problems at the embassy because of his father's status?

I plan to go to Guatemala for the interview along with his biological mother (and appropriate paperwork from her authorizing him to be in my custody). Note: I currently don't have plans to adopt.

3) I feel like I've been waiting longer than others for a reply from NVC for the next step (AOS fee paid; DS3032 Choice of Agent received). No instruction to send AOS or AOSW form; no instruction to pay IV application processing fee. I'm supposed to just be patient with NVC, right?

IR2 Visa for U.S. Citizen's Stepson in Guatemala

5/26/11 -- I-130 received by USCIS

9/13/11 -- Request for evidence by USCIS

9/28/11 -- USCIS approval of petition

10/25/11 -- NVC sends Choice of Address & Agent (DS-3032)

10/25/11 -- NVC sends (& we pay) request for Affidavit of Support (AOS) processing fee $88

11/7/11 -- NVC receives Choice of Address & Agent

[hellorebecca 0]

Ok well now I feel a little sheepish. Forget Question 3.

"3) I feel like I've been waiting longer than others for a reply from NVC for the next step (AOS fee paid; DS3032 Choice of Agent received). No instruction to send AOS or AOSW form; no instruction to pay IV application processing fee. I'm supposed to just be patient with NVC, right?"

I called NVC and talked to someone and she was nice and explained I could fill out the AOS form and send it and that the IV Application fee payment would show up any day now. It was reassuring to verify my email address at least, since I had had written it on the Choice of Agent form.

[JimVaPhuong 4,863]

1) Will there be problems at NVC because of his father's undocumented status?

No, the father's status shouldn't affect the NVC process for your step-son. The IR2 visa is based on your status as a US citizen, and your relationship to your step-son. The father's status isn't relevant.

2) If we do get to the interview - will there be problems at the embassy because of his father's status?

I plan to go to Guatemala for the interview along with his biological mother (and appropriate paperwork from her authorizing him to be in my custody). Note: I currently don't have plans to adopt.

There shouldn't be a problem because of the father's status. Again, it's not relevant to this type of visa. There's no requirement that the biological parent be an LPR or US citizen in order for the US citizen step-parent to petition for the step-child.

It does bring up an interesting question, though...

The consulate usually wants permission from the non-immigrating biological parent allowing the child to immigrate. In this case, neither parent is technically an immigrant. What are you going to do if the consulate wants permission from his father for him to immigrate? What if they want to interview the father? The consulate can put his father in a position where he has to leave the US and incur a 10 year ban in order to allow the son to immigrate. It's a sneaky trick, but they have the authority to do it.

If I were you, I wouldn't be holding my breath hoping for a change in immigration law that will benefit your husband. The Democrats held the Presidency and both houses of Congress for two years, and they still couldn't shove the DREAM act through. The public mood isn't like it was in the 1980's when Reagan passed his amnesty act. People are generally strongly opposed to anything that resembles amnesty for EWI's right now. Several states have passed laws that crack down on illegal immigrants, which pretty much reflects the public sentiment. That's not likely to change unless there's a dramatic improvement in the economy, and nobody is predicting that for a long time. Like it or not, when the economy sucks then even legal immigrants become scapegoats for the lack of jobs.

In other words, what I'm saying is that what you're hoping for might never happen. On the other hand, you can get a really good immigration attorney and try for the I-601 waiver. You have a better chance of being approved if his son is living with you in the US. If that doesn't pan out then he'd have to wait out the 10 year ban. To be honest, I think the ban will over before another amnesty is passed by Congress. That's just my personal opinion, though.

[hellorebecca 0]

Thank you so much JimVaPhuong!

The consulate usually wants permission from the non-immigrating biological parent allowing the child to immigrate. In this case, neither parent is technically an immigrant. What are you going to do if the consulate wants permission from his father for him to immigrate? What if they want to interview the father? The consulate can put his father in a position where he has to leave the US and incur a 10 year ban in order to allow the son to immigrate. It's a sneaky trick, but they have the authority to do it.

That is very helpful to know that they have the could request an interview with his father. Boy, that would stink. I'll make sure to have notarized documents from both of the biological parents authorizing the child to immigrate to the U.S. and hope that is sufficient.

On the other hand, you can get a really good immigration attorney and try for the I-601 waiver. You have a better chance of being approved if his son is living with you in the US.

We have been to half a dozen immigration lawyers and not one of them brought up the I-601 waiver. We will seriously consider that for adjustment of status in the U.S., especially if my stepson gets the visa. I figured we'd eventually have to go to Guatemala due to death or illness in his family and then we would continue his visa process from there, get the 10 year ban, and follow up with an appeal. We have a strong case for appeal because I have multiple sclerosis and we have a biological son and a small business together. Further, my husband is coming up on being in the U.S. for 10 years with good moral character and all that jazz, which means he might qualify for cancellation of removal IF we could get him into the system.

I share your opinion that immigration reform is no where in sight.

[hellorebecca 0]

Oh - False alarm. I didn't realize 601 is the waiver my husband would apply for after he has been denied the visa on grounds of inadmissability (which he'd have to go to Guatemala to get). He entered without inspection so there's no status for him to adjust at this point.