What to do about Stepson who went back to Russia a year ago?

[David and Elena 0]

Hopefully this is the right board for this question, but please redirect me if it isn't. Here's the situation for which I need some comments.....

My now wife, came from Russia with her son in October 2011, we were married and they both received their temporary green cards which expire on October 10, 2014. My stepson later decided he did not want to live here (USA) and he went back to Russia on June 4, 2013. Now he and his Mom wish for him to try and "keep his Green card options open" as I prepare to file now in July 2014 for the lifting of conditions. Problems I see... On June 4, 2014 the stepson will have been out of the US for 365 days. He is going to school in Russia and has two years left to finish a High School diploma. We were married prior to his 17th birthday and he will be 19 this year on November 1st. He would finish the High School in Russia prior to turning 21. Mom was a K1 visa and Stepson was a K2 visa. My question is what to do now? Do I rush him back so he is not out of country more than 365 contiguous days and then keep him here through the lifting of conditions process? Or.. do I later come back and we file for him to come over on a Family Visa? (Coming right now will disrupt schooling there for him!) He is wish washy about whether or not he will choose to live ong term in Russia or USA! Trying to do the right thing! Stuck,,.need help! Advice appreciated!Thanks!

[Dave&Roza 748]

Hopefully this is the right board for this question, but please redirect me if it isn't. Here's the situation for which I need some comments.....

My now wife, came from Russia with her son in October 2011, we were married and they both received their temporary green cards which expire on October 10, 2014. My stepson later decided he did not want to live here (USA) and he went back to Russia on June 4, 2013. Now he and his Mom wish for him to try and "keep his Green card options open" as I prepare to file now in July 2014 for the lifting of conditions. Problems I see... On June 4, 2014 the stepson will have been out of the US for 365 days. He is going to school in Russia and has two years left to finish a High School diploma. We were married prior to his 17th birthday and he will be 19 this year on November 1st. He would finish the High School in Russia prior to turning 21. Mom was a K1 visa and Stepson was a K2 visa. My question is what to do now? Do I rush him back so he is not out of country more than 365 contiguous days and then keep him here through the lifting of conditions process? Or.. do I later come back and we file for him to come over on a Family Visa? (Coming right now will disrupt schooling there for him!) He is wish washy about whether or not he will choose to live ong term in Russia or USA! Trying to do the right thing! Stuck,,.need help! Advice appreciated!Thanks!

He needs to come home for the summer vacation before he is out of the US for more than 1 year. Have him carry with him proof of his schooling and you and his Mother's address in the US. He is like any other student that has a permanent address where his parent's live and a temporary school address which happens to be in Russia. It makes sense for him to finish his schooling in his home country, but the CBP may wonder why he is not attending a High School in the US. Just have him tell the CBP person that High School in the US is equivalent to Junior High in Russia and his High School is like going to college--i.e. schools are better in Russia than in the US.

Just make certain he gets back to the US before he has been outside the US for 365 days. He may encounter some problems, but as long as he can show that he is a student temporarily living in Russia and his permanent home is in the US, he SHOULD be fine.

Good luck,

Dave

[NancyNguyen 1,657]

Assuming he doesn't have a reentry permit, then he needs to come back before June 4, or he will abandon his conditional permanent residence. There is nothing you can do to keep his greencard if he doesn't come back by then. At border patrol, if CBP officer doesn't have any persuasion that your son still maintains his residence here in the States, he can deny your son entry.

Edited May 4, 2014 by NancyNguyen

[David and Elena 0]

Thank you for the quick answers! Is it also possible to wait, and then apply later before he turns 21 for a Family Visa? He won't turn 21 for 2 1/2 years yet. Thanks all!. David

[Penguin_ie 5,993]

**** Moving from AOS from Family Visa, as OP's stepson already Adjusted Status, to "Working & Traveling during US Immigration", for more answers ******

[Hypnos 6,576]

At border patrol, if CBP officer doesn't have any persuasion that your son still maintains his residence here in the States, he can deny your son entry.

This is actually not the case, an LPR cannot be denied entry until an immigration judge has made a determination that they are no longer an LPR, or the LPR voluntarily relinquishes their green card. What CBP can do is issue you with a Notice To Appear (NTA) in front of an immigration judge. At that point CBP can either parole you into the US temporarily until that court date (this is most likely) or, theoretically, hold you in detention until that time (this rarely happens).

[David and Elena 0]

So, generally, I am taking away from your responses the following:

1) Better to have the stepson get back here before 365 days have expired, but still be ready to explain his schooling and also his ties to the US and intent for LPR.

2) Before OR after the 365 days, CBP can question his LPR status and generally worst case not deny him entry but set him a hearing with an immigration judge. BUT, it is generally better still to get him here before 365 days have expired. (June 4th)

As I explained, my "window" for filing lifting of restrictions for my wife and stepson begins July 10 this summer. I don't want anything to screw up filing for my wife! Would I be correct then in assuming, IF he (my stepson) does not get here before the 365 days (June 4th), then perhaps it will be better to file for lifting of restrictions for my wife without the stepson, and then later (maybe 18 months out) consider a Family Visa petition for him to come to the US prior to his turning 21, assuming he is not prior married etc?

Your continued comments most appreciated as your input is so very helpful! Thanks! David

[Dave&Roza 748]

So, generally, I am taking away from your responses the following:

1) Better to have the stepson get back here before 365 days have expired, but still be ready to explain his schooling and also his ties to the US and intent for LPR.

2) Before OR after the 365 days, CBP can question his LPR status and generally worst case not deny him entry but set him a hearing with an immigration judge. BUT, it is generally better still to get him here before 365 days have expired. (June 4th)

As I explained, my "window" for filing lifting of restrictions for my wife and stepson begins July 10 this summer. I don't want anything to screw up filing for my wife! Would I be correct then in assuming, IF he (my stepson) does not get here before the 365 days (June 4th), then perhaps it will be better to file for lifting of restrictions for my wife without the stepson, and then later (maybe 18 months out) consider a Family Visa petition for him to come to the US prior to his turning 21, assuming he is not prior married etc?

Your continued comments most appreciated as your input is so very helpful! Thanks! David

If your step-son remains outside the US for 366 days and does not have a re-entry permit that he applied for BEOFRE he left the US, then he can kiss his GC good-bye. Your wife's ROC has nothing to do with her son's. Her son can be included on her application for ROC or not. The problem with a family visa is that your wife would be the petitioner unless you officially adopt her son. A LPR petitioning for a relative has to wait for the priority date to become current and given that he is so close to aging out, the priority date for an unmarried child of a LPR from Russian my be 3 years of more--you can look this up for yourself--it may be only 1 to 2 years. IMHO it would be better to fly him to the US before he is out for more than 365 days, file for his ROC and let him go back to school in Russia this fall and have him come to the US over the winter break and the summer break until he graduates.

Dave

[David and Elena 0]

Thanks for the additional responses. I have read that a step child can be considered an "immediate relative" if the child was under the age of 18 when the marriage occurred that created the step child - step parent relationship. That is true in our case. (He was 17 when we were married) My stepson has a SS Card, Drivers Permit for Florida etc because he was here for 20 months before going back to Russia for school). Further that there are "unlimited" visas allotted for those who qualify as "immediate relatives".

I make this point because IF my Step son does not get to the US before the 365 days expires, my belief is that he may qualify as an "immediate relative" prior to his turning 21 in 2 1/2 years. If this is the case, then he would not be subject to the wiata and restrictions of an F2A?? Comments?

To further complicate matters his International Russian Passport expired and he may not be able to get a reissue before June 4, 2014 to get here before the 365 days. Thus why I am looking so hard at the "immediate relative" issue and f;ling for a new VISA for him in about 18 months so he can finish school in Russia.

Thanks for all the input! David

[Hypnos 6,576]

You can petition him as an immediate relative at any point in the future up until his 21st birthday, as you married his mother before his 18th birthday.

If you haven't (re-)petitioned him by his 21st birthday then any filing you make for him after that would be under the F1 category, which currently has a 7 year wait. Your wife could also petition him under the F2B category, which has a wait time almost identical to F1 at the moment.

If he fails to re-enter by the time his 365 days are up then his chances of receiving an NTA are extremely high, because the presumption in law is that he has abandoned his residency.

Edited May 5, 2014 by Hypnos

[David and Elena 0]

Thank you all for the great support and replies!

[Jawaree 717]

It will take approx. a month to re-new his PP there?

I would have him return spend summer and request

a re-entry due to desire in finishing schooling in Russia.

He is still young to make a decision where to live , and

right now he's in a favorable situation...who knows about later