Stepson petition almost done but divorce was filed - What now?

[giulianoseguro 8]

Hi Immigration experts and friends,

My case is a bit unusual and I'm loosing sleep over it trying to anticipate what's going to happen.

I'll give you a run down of what's going on:

My mom got married to a LPR back in 2006 (I was 17 at the time), she moved to the US and I went right afterwards. We filed for my greencard and she decided to wait for him to become an USC.

Our lawyer at the time said as I was his stepson, I needed to wait for my visa in Brazil (home country) as I was ineligible for adjustment of status. So that's what I did and have been waiting ever since.

However, my priority date (2008) took a long time to be up and meanwhile my mom and my stepdad had a falling out and my mom decided to came back to Brazil in 2010. They were still legally married in that time just not living together. I stayed in touch with my stepdad in rare occasions such as birthdays, christmas etc but kept it to a minimum to not upset my mom. Recently, I've received a letter from the NVC asking to submit the AOS and wait for the interview date so my stepfather contacted me asking if I'd like to continue with the process giving the problems between he and my mom and I said yes. However he mentioned he filed for divorce in June 2014 and it was final in August 2014. I was shocked because we hadn't spoken in a while but he said someone had told him we could continue with the process.

I then proceeded to do some research on my own and given the peculiarity of the case decided to hire a new lawyer. They're a big office in Seattle and work for large corporations so I feel in good hands but she hasn't handled a case like mine. She did her research and said that although they'd gotten divorced, they petition would still be valid if the relationship between me and my stepfather continued after the divorce. So, finally my questions are:

1. Will the divorce come up in the consular/embassy interview or we don't need to mention it?
2. My stepdad said he's going to do whatever he can to support me all the way, including coming to the interview in Brazil. Who should actually come? Just he and me or my mom also?
3. I've only started keeping records of the relationship between my stepdad and I when I found out about the divorce (which was in Aug'14) although they'd been living apart for longer. Will this pose an issue? I have little records of our talks in the past and kept it all to a minimum/confidential due to my mom
4. I'm afraid that on the consular interview, the person won't be aware of the particularities within the law and that the divorce might be a automatic deal breaker. Are they flexible on listening and seeing the evidence or will I have to go straight to the BIA?

If you've seem a case even remotely similar, please do share. I'm taking all feedback I can get right now. It's been 7 years in the wait and thousands of dollars spent. Don't want it to end it now.

Thanks in advance,

Giuliano

Edited February 3, 2015 by giulianoseguro

[RICARDO4EVA2 194]

From what I thought was an understanding - once the parent relationship terminates the petition dies.

[giulianoseguro 8]

From what I thought was an understanding - once the parent relationship terminates the petition dies.

Hi Ricardo,

The U.S. Department of State Foreign Affairs Manual states the following:

9 FAM 40.1 N2.2-2 Stepparent/Stepchild Relationships After Termination of Marriage (CT:VISA-1000; 09-03-2008) a.

A stepchild who has met the requirements to qualify as a “child” of the stepparent under INA 101(b)(1)(B) may continue to be entitled to immigration benefits from such marriage, even though the relationship between the natural parent and the stepparent has been terminated by divorce or by the death of the natural parent, provided the marriage was a valid marriage and the family relationship continues to exist as a matter of fact between the stepparent and stepchild.

So I'm taking this as the grounds for continuing with my petition hoping to find someone who has gone thru the same ordeal to provide some insight.

Thanks,

Giuliano

[RICARDO4EVA2 194]

Hi Ricardo,

The U.S. Department of State Foreign Affairs Manual states the following:

9 FAM 40.1 N2.2-2 Stepparent/Stepchild Relationships After Termination of Marriage (CT:VISA-1000; 09-03-2008) a.

A stepchild who has met the requirements to qualify as a “child” of the stepparent under INA 101(b)(1)(B) may continue to be entitled to immigration benefits from such marriage, even though the relationship between the natural parent and the stepparent has been terminated by divorce or by the death of the natural parent, provided the marriage was a valid marriage and the family relationship continues to exist as a matter of fact between the stepparent and stepchild.

So I'm taking this as the grounds for continuing with my petition hoping to find someone who has gone thru the same ordeal to provide some insight.

Thanks,

Giuliano

Sounds good. .. You are good so long as you can show an ongoing proof that you and the step parent had an ongoing relationship. You have to show more contact than holidays, birthdays.. A relationship vs an association by default. It should be hurdles that could be overturned in time.

Edited February 3, 2015 by RICARDO4EVA2

[giulianoseguro 8]

Sounds good. .. You are good so long as you can show an ongoing proof that you and the step parent had an ongoing relationship. You have to show more contact than holidays, birthdays.. A relationship vs an association by default. It should be hurdles that could be overturned in time.

That's my biggest concern - I wanna build a strong case but all I have are e-mails, a few SMS messages, a couple phone calls but pretty much all dating from Dec'14 only - I couldn't salvage much from earlier times. I'm visiting him in March and he's visting me a few weeks later but I just don't want it to seem like we're building those on purpose.

[Boiler 45,511]

I do not rember a case like this, the only thing comparable I can think of is illegitimate children who have had no contact with their father a USC for many years.

[apple21 953]

You said so yourself that you kept in touch only in "rare occasions" so meaning you guys don't have a bonafide parent/child relationship. It will look like you're just after the green card but who knows?

Good luck though.

[giulianoseguro 8]

Apple21

Edited February 3, 2015 by giulianoseguro

[giulianoseguro 8]

Apple21,

Not sure if you read it attentivaly but I mentioned that I kept communications to rare occasions during the time their marriage was falling apart to not upset my mother as she was going thru a difficult time. We stayed in touch but had she known it would make things worse for her. We've always had a close relationship but it was his decision to cut communications while they sorted things out. I'm in no way looking to benefit from a lie

Edited February 3, 2015 by giulianoseguro

[apple21 953]

Look at it from a stranger's perspective. That's how the consul officer will look at it as well.

[Boiler 45,511]

How much face time have you had?

[giulianoseguro 8]

How much face time have you had?

We've lived together for 1yr which is the time I was in the US. Before that, we met everything he came to Brazil which was 3 or 4 times in the year.

From 2007 til 2011 he stayed in the US with my mom and since I couldn't come to visit we stayed in touch thru phone and e-mail.

Although I understand where you're coming from Boiler and Apple21 (and I appreciate you playing devil's advocate with the hard questions) but the US State department says we don't even need to have met each other:

9 FAM 40.1 N2.2-2 (B) The fact that the stepparent petitioner is willing to provide the required Form I- 864, Affidavit of Support Under Section 213A of the Act is not by itself sufficient evidence that the family relationship continues to exist between the stepparent and the stepchild. There must be evidence of some form of contact (e.g., letters, electronic mail, telephone calls, etc.), though it is not necessary that the stepparent and stepchild have met in person.

So if I was looking at only the fact that we haven't had that much face time I could said we didn't have a bonafide relationship but apparently by law it doesn't matter as long as the marriage is legit.

My rationale is the following: if we considerer the states department following quote: In addition, if the marriage between the natural parent and stepparent is still in effect (i.e., the marriage has not been terminated by divorce or by death of the natural parent), there is no requirement that an emotional relationship exist between the stepchild and stepparent

Then everything between me and him doesn't really matter up until the moment of the divorce when we can actually show evidence to prove that our relationship continued after it was final.

I think there's a lot of grey areas but I'm trying to reply to Apple21 perspective as If I was talking to the consular officer, showing that I'm backed by law.

What do you think guys?

Thanks for all the feedback and suggestions so far.

[Na&John 3]

To be honest I have the same thought as Apple21, however, I think you have real chances if you show that you and your stepfather have a real relationship, I had my k1 visa interview last week, they are very good people and just wanna check your intentions. Having him with you at the interview will help a lot!

I would not mention the law to the consular officer, first, because he is supposed to know it and second because, in my very own opinion, you can sound desperate, as long as I think a person with good intentions dont even need to tell them "hey i have the right" (w/ exceptions, of course).

[RICARDO4EVA2 194]

To be honest I have the same thought as Apple21, however, I think you have real chances if you show that you and your stepfather have a real relationship, I had my k1 visa interview last week, they are very good people and just wanna check your intentions. Having him with you at the interview will help a lot!

I would not mention the law to the consular officer, first, because he is supposed to know it and second because, in my very own opinion, you can sound desperate, as long as I think a person with good intentions dont even need to tell them "hey i have the right" (w/ exceptions, of course).

You're right.. don't quote the laws.. they already know it. it makes you seem arrogant and true - desperate.

[RICARDO4EVA2 194]

9 FAM 40.1 N2.2-2 (B) The fact that the stepparent petitioner is willing to provide the required Form I- 864, Affidavit of Support Under Section 213A of the Act is not by itself sufficient evidence that the family relationship continues to exist between the stepparent and the stepchild. There must be evidence of some form of contact (e.g., letters, electronic mail, telephone calls, etc.), though it is not necessary that the stepparent and stepchild have met in person.

I think there's a lot of grey areas but I'm trying to reply to Apple21 perspective as If I was talking to the consular officer, showing that I'm backed by law.

What do you think guys?

Thanks for all the feedback and suggestions so far.

Tho its not necessary, gives them room to go as deep as they see fit. You seem to have expressed the laws to us in a convincing way of facts. You should be fine. Its recommended that you stick to the story.. i.e. not having a stronger relations in the best interest of ya mother etc. and stay focus on the relationship the two of you have. They care less of the decision you made not not have a stronger bond or his efforts to talk more freely.. when not in the home (or around ya mother).

My thoughts to this..