Can I add my husbands son as a derivative applicant on I-485 even though he hasn't joined us yet here in the states?

[Mimicherie 142]

 

I'm filling out the I-485 for my husband who was admitted through a K1 Fiance Visa. We added his son to his original petition I-129F and we're going to complete the follow to join process soon which means his son hasn't been admitted into the states yet. Should I still add his son as a derivative applicant? Or should I not since he has yet to be here?

[NikLR 13,227]

3 hours ago, gsdc23 said:

 

I'm filling out the I-485 for my husband who was admitted through a K1 Fiance Visa. We added his son to his original petition I-129F and we're going to complete the follow to join process soon which means his son hasn't been admitted into the states yet. Should I still add his son as a derivative applicant? Or should I not since he has yet to be here?

The son needs his own I-485, he's not a derivative and yes he needs to be in the USA. 

[Pitaya 2,577]

How old is the son?

 

Information about follow to join children K2 visa, from DOS FAQs:

https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-fiance-k-1.html

[Mimicherie 142]

8 hours ago, Pitaya said:

How old is the son?

 

Information about follow to join children K2 visa, from DOS FAQs:

https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-fiance-k-1.html

He’s 8 turning 9 soon. Thank you for the link, we’re due to complete the follow to join soon but my husband and I wanted to complete AOS before starting that process with my stepson. 

12 hours ago, NikLR said:

The son needs his own I-485, he's not a derivative and yes he needs to be in the USA. 

Even if he’s 8 years old and will be joining us soon?

[Unlockable 7,314]

27 minutes ago, gsdc23 said:

He’s 8 turning 9 soon. Thank you for the link, we’re due to complete the follow to join soon but my husband and I wanted to complete AOS before starting that process with my stepson. 

Even if he’s 8 years old and will be joining us soon?

What do yo mean joining you soon? How is he joining you?

 

Edit: Sorry I just saw that he is doing follow to join. The previous posts are correct, the son has to be here in person first.

Edited October 20, 2019 by Unlockable

[aaron2020 11,651]

In order to qualify to adjust status, your stepson needs to have a K-2 and have been admitted to the US.  You can not file before that.

 

Right now, he has no visa.  There is no basis for you to file to adjust his status.

 

After your stepson enters the US with his K-2 visa, then you will need to file a separate I-485 for him.  

 

The only way to file for your spouse and stepson together to adjust status is for both of them to be admitted to the US on their K-1 and K-2 visas.  That isn't happening, so you can not file for them together. 

[Mimicherie 142]

8 minutes ago, Unlockable said:

What do yo mean joining you soon? How is he joining you?

 

Edit: Sorry I just saw that he is doing follow to join. The previous posts are correct, the son has to be here in person first.

Ok so I understand not to add him as a derivative because he isn’t here yet & would have to file his own I-485.

 

Next set of questions: Would that process be the same price as the one for my husband ? When he’s here & the application is getting ready to be filled out does our son have a specific deadline/amount of time to complete it? 
 

I’m guessing it’ll be different since he’s not applying for work authorization as of yet, but how different is if from what I’m doing for my husband now. (AOS)

[payxibka 10,045]

45 minutes ago, gsdc23 said:

Ok so I understand not to add him as a derivative because he isn’t here yet & would have to file his own I-485.

 

Next set of questions: Would that process be the same price as the one for my husband ? When he’s here & the application is getting ready to be filled out does our son have a specific deadline/amount of time to complete it? 
 

I’m guessing it’ll be different since he’s not applying for work authorization as of yet, but how different is if from what I’m doing for my husband now. (AOS)

No difference in price when filing separate except no biometrics fee.  You will still want to file the i765 so he can get an  ssn

[NikLR 13,227]

3 hours ago, gsdc23 said:

Ok so I understand not to add him as a derivative because he isn’t here yet & would have to file his own I-485.

 

Next set of questions: Would that process be the same price as the one for my husband ? When he’s here & the application is getting ready to be filled out does our son have a specific deadline/amount of time to complete it? 
 

I’m guessing it’ll be different since he’s not applying for work authorization as of yet, but how different is if from what I’m doing for my husband now. (AOS)

He wouldn't be a derivative anyhow.  You'd just file together and save a little money.  Regardless of when you AOS your step son,  he would need his own I-485.

Same as your husband he loses status within 90 days. 

[HRQX 4,145]

21 hours ago, gsdc23 said:

I'm filling out the I-485 for my husband who was admitted through a K1 Fiance Visa.

When did he enter the US? By filing them separate it's just $390 more: https://www.uscis.gov/i-485

[HRQX 4,145]

5 hours ago, gsdc23 said:

I’m guessing it’ll be different since he’s not applying for work authorization as of yet

I-765 and I-131 are recommended; both are free to file: "If you properly file Form I-485 and pay the required fees, you may file Form I-765 and Form I-131 without paying additional fees. You may file these forms together, or if you choose to file Form I-765 or Form I-131 separately, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence that you filed and paid for Form I-485." https://www.uscis.gov/system/files_force/files/form/i-485instr.pdf Page 16

[Cathi 5,747]

Does the child have authorization from his mother to leave the country permanently to live in the U.S?

Edited October 20, 2019 by Cathi

[Pitaya 2,577]

22 minutes ago, Cathi said:

Does the child have authorization from his mother to leave the country permanently to live in the U.S?

Good question. one that has yet to be discussed.

6 hours ago, gsdc23 said:

He’s 8 turning 9 soon. Thank you for the link, we’re due to complete the follow to join soon but my husband and I wanted to complete AOS before starting that process with my stepson. 

Even if he’s 8 years old and will be joining us soon?

With current AOS processing taking around 300 days, you may run out of time if you want to complete the K1 AOS first before starting the follow to join process for the K2. There is a one year limit from the K1 issuance to do the K2 follow to join. You are cutting it too close for the K1 AOS and the K2 follow to join each process have many variables that could disrupt your proposed timing. For example, if during the K1 AOS process you received any RFE or other delay, you could find yourself close to or beyond the K2 one year follow to join limit.

 

Quote

Like you, your children must travel within the validity of their K-2 visas. Separate petitions are not required if the children accompany or follow to join you within one year from the date of issuance of your K-1 visa. If they want to travel later than one year from the date your K-1 visa was issued, they will not be eligible to receive K-2 visas, and separate immigrant visa petitions will be required

REF: https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/nonimmigrant-visa-for-a-fiance-k-1.html#16

 

You will want to do EAD for the K2, as others have mentioned, in order for the K2 to get their SSN. Otherwise, the K2 will have to wait until they have a GC to file for a SSN. 

 

For both the K1 and K2, file AOS/EAD/AP concurrently, as others have mentioned.

 

 

[Mimicherie 142]

7 hours ago, HRQX said:

When did he enter the US? By filing them separate it's just $390 more: https://www.uscis.gov/i-485

He entered late May of this year & we married in  July. He’s currently out of status which I know all the consequences for, but we’re filing now. 

[Mimicherie 142]

7 hours ago, HRQX said:

I-765 and I-131 are recommended; both are free to file: "If you properly file Form I-485 and pay the required fees, you may file Form I-765 and Form I-131 without paying additional fees. You may file these forms together, or if you choose to file Form I-765 or Form I-131 separately, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence that you filed and paid for Form I-485." https://www.uscis.gov/system/files_force/files/form/i-485instr.pdf Page 16

Oh my husband application will have all of these forms submitted with his I-485 I was referring to his son not needing an EAD since he’s underage if I were to add him as a derivative, which I now know I can’t since he isn’t here yet.