I-130 and I-601A for step mother of a USC

[luisrolo 0]

Hi everyone in the forum.

I have a question about the possibility of a USC filing for a step mother, my dad and my step mom had been married since I was 14y/o and now that I'm USC I would like to help my step mom to become a permanent resident, my mom entered the US without inspection, so my questions are:

Can I file an I-130 for my step mom showing prove that she is been married to my biological dad since I was 14 years old

If yes after I-130 is approved what is the process to follow since she is currently illegally in the country

Does the form I-601A will allow my step mom to stay and wait for the visa interview in her home country ? if so what is the process to file this form

Any help would be greatly appreciated

Thanks

Luisrolo

[Hypnos 6,578]

http://www.h1b.biz/i-601a-waiver-attorney-provisional-unlawful-presence-waiver-proc.html#7 indicates that parents of a US citizen are not eligible to file an I-601A.

You would file the I-130 now, and your stepparent would need to be found inadmissible to the US at their visa interview. They would then be given the opportunity to file a normal I-601 waiver.

You should consult with an immigration attorney experienced in waivers.

Edited July 18, 2015 by Hypnos

[Hypnos 6,578]

To clarify with a more official source: http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers

Whilst technically a parent of a US citizen can file an I-601A, if you read through the requirements you must show "... that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent." This is where your stepmother would get tripped up, since the regulations exclude being able to demonstrate hardship to a US citizen child for whatever reason.

You would need to use the traditional I-601 process in this case.

Edited July 18, 2015 by Hypnos

[newacct 688]

http://www.h1b.biz/i-601a-waiver-attorney-provisional-unlawful-presence-waiver-proc.html#7 indicates that parents of a US citizen are not eligible to file an I-601A.

You would file the I-130 now, and your stepparent would need to be found inadmissible to the US at their visa interview. They would then be given the opportunity to file a normal I-601 waiver.

You should consult with an immigration attorney experienced in waivers.

This is incorrect. To be eligible for an I-601A, she has to be eligible for an I-601 (i.e. there has to be hardship to her spouse or her parent who is a US citizen or permanent resident), and she has to be in the Immediate Relative category (which she is because she is the parent of a USC).

So either she is not eligible for I-601 at all, or she is eligible for I-601A.

[Hypnos 6,578]

Upon review you are quite correct.

The only way through would be if the father is a US citizen and could himself be a qualifying spouse for the purposes of hardship.

USCIS have actually proposed a new rule in the past few days which would expand the I-601A process to all aliens, not just immediate relatives, and LPR parents and spouses could now be qualifying relatives. Further details on this proposal here: http://www.uscis.gov/news/alerts/uscis-seeks-comments-proposed-expansion-eligibility-provisional-unlawful-presence-waivers

If they are still married and the father is an LPR, perhaps this is a possibility if the rule is approved. Of course, if the father is a US citizen then they're eligible now.

Edited July 18, 2015 by Hypnos

[newacct 688]

nevermind, you're right

Edited July 18, 2015 by newacct

[Hypnos 6,578]

The I-601A requires qualifying relatives for the purposes of hardship to be US citizen spouses or parents. An LPR spouse wouldn't count, nor would a US citizen child.

[luisrolo 0]

Thanks everyone for the very useful information, if I understand correctly the case should go like this

USC file for stepmom in for I-130

Once the application gets approved beneficiary will be found inadmissible because of unlawful presence for over 180 days in US

we can then present form I-601

Still confused about who has to be affected if the applicant is removed of the US, according to instructions in form I-601A is only applicable if hardship is proven for an USC parent or husband, but according to instructions on form I-601 is for USC or LPR husband or parent and

Please see attached file

Thanks

[Hypnos 6,578]

Right now your stepmother has no qualifying relative to be able to successfully get an I-601 approved. If she files she will be denied, if her only qualifying relative is you.

[newacct 688]

What is the status of your dad?

[luisrolo 0]

Thanks for the replay

Here is the situation of my step mom

I am a USC and I have filed a form I-130 for her, my dad is a LPR and they have 2 children both are USC, 11 and 13 y/o, my plan was to apply for I-601 presenting the hardship that her removal would cause to the husband (LPR) and the children (USC), please let me know if this is possible

I'm looking for a lawyer that can help me with this process but I want to be well informed because a bad experience with a lawyer thought me that we need to know so we don't get lied in our face, if I know the basics at least I will be able to recognize a lawyer that actually knows the process

Thanks

[newacct 688]

Thanks for the replay

Here is the situation of my step mom

I am a USC and I have filed a form I-130 for her, my dad is a LPR and they have 2 children both are USC, 11 and 13 y/o, my plan was to apply for I-601 presenting the hardship that her removal would cause to the husband (LPR) and the children (USC), please let me know if this is possible

I'm looking for a lawyer that can help me with this process but I want to be well informed because a bad experience with a lawyer thought me that we need to know so we don't get lied in our face, if I know the basics at least I will be able to recognize a lawyer that actually knows the process

Thanks

It will need to be based on hardship to her husband. Her children don't count.

[luisrolo 0]

It will need to be based on hardship to her husband. Her children don't count.

Thanks for confirming,