K-1 / K-2 Complicated process

[Yugo1996 9]

First sorry if I miss post or make a mistake ahead of time. I believe I posted here before, unsure if it was this account. All I know is, that it was an amazing help and reassurance from others. For that I thank all of you who helped me before and for everyone taking their time out of their day to read this and hopefully input any helpful advice. 

Some information about me. I got my citizenship through my parents through naturalization when I was a child. When I was 14/15 Years of age, we moved back to my country and I finished my High school degree in my home country and then I continued studying there for University. Which I met my fiancee in high school and we got engaged my 2nd year of Uni, and started living together and had a child out of wedlock. Now, I tried to apply for Counselor Birth of Abroad when he was a 1 year old but I was not eligible because I did not reach the Criteria, in which it required I lived 5 years in the U.S. but out of those 5 years, 2 at least have to be over the age of 14. Which I do not, I have been living in the U.S. for over 14 years until I moved and I have visited off and on again, but I moved back recently about a year ago to establish domicile in the U.S. and to get consisted/permanent Job in the U.S. to support them. Once I got a job I applied for the K-1 Visa, hired a local immigration attorney to help with the paperwork as I know a slight mistake can prolong the process even longer. We filed for the I-129 etc to USCIS and everything went smoothly, we paid for everything on time, and they did their medical exam and we set an appointment for their interview when she gets a call from the Embassy today 3 days prior to her interview, saying since my son is biologically mine, he is not eligible for the K-1/I-129/K-2 and cannot obtain a Visa and they gave us 2 options. One for her to leave our child and go to the U.S. or to basically just withdraw from the process and reapply again and apply first for the I-130 for my son.

I have no idea what to do, and at this point I'm just overwhelmed. I provided all the evidence I had and did as much research as possible to hopefully win over the agent/embassy into allowing my son to be allowed a K-2 Visa to go with my fiancee/ his biological mother to the U.S. together as he is only 4 years old. Since this is a difficult case I was hoping that it would workout in our favor, they said they would contact me tomorrow for further information and to thoroughly evaluate all the information I gave them.

Thank you again. 

[payxibka 10,045]

5 minutes ago, Yugo1996 said:

First sorry if I miss post or make a mistake ahead of time. I believe I posted here before, unsure if it was this account. All I know is, that it was an amazing help and reassurance from others. For that I thank all of you who helped me before and for everyone taking their time out of their day to read this and hopefully input any helpful advice. 

Some information about me. I got my citizenship through my parents through naturalization when I was a child. When I was 14/15 Years of age, we moved back to my country and I finished my High school degree in my home country and then I continued studying there for University. Which I met my fiancee in high school and we got engaged my 2nd year of Uni, and started living together and had a child out of wedlock. Now, I tried to apply for Counselor Birth of Abroad when he was a 1 year old but I was not eligible because I did not reach the Criteria, in which it required I lived 5 years in the U.S. but out of those 5 years, 2 at least have to be over the age of 14. Which I do not, I have been living in the U.S. for over 14 years until I moved and I have visited off and on again, but I moved back recently about a year ago to establish domicile in the U.S. and to get consisted/permanent Job in the U.S. to support them. Once I got a job I applied for the K-1 Visa, hired a local immigration attorney to help with the paperwork as I know a slight mistake can prolong the process even longer. We filed for the I-129 etc to USCIS and everything went smoothly, we paid for everything on time, and they did their medical exam and we set an appointment for their interview when she gets a call from the Embassy today 3 days prior to her interview, saying since my son is biologically mine, he is not eligible for the K-1/I-129/K-2 and cannot obtain a Visa and they gave us 2 options. One for her to leave our child and go to the U.S. or to basically just withdraw from the process and reapply again and apply first for the I-130 for my son.

I have no idea what to do, and at this point I'm just overwhelmed. I provided all the evidence I had and did as much research as possible to hopefully win over the agent/embassy into allowing my son to be allowed a K-2 Visa to go with my fiancee/ his biological mother to the U.S. together as he is only 4 years old. Since this is a difficult case I was hoping that it would workout in our favor, they said they would contact me tomorrow for further information and to thoroughly evaluate all the information I gave them.

Thank you again. 

You will not be able to "win" anyone into a k2 as he is simply not eligible for that visa

[Yugo1996 9]

Silly of me to say "win", but somehow provide evidence to state that is eligible since he technically is and isn't. Since he doesn't file under any other category, and technically the only qualification for a K-2 is that the child has to be under the age of 21. 

[payxibka 10,045]

38 minutes ago, Yugo1996 said:

Silly of me to say "win", but somehow provide evidence to state that is eligible since he technically is and isn't. Since he doesn't file under any other category, and technically the only qualification for a K-2 is that the child has to be under the age of 21. 

There cannot be any existing parental relationship between the petitionner and the child.  Unfortunately he is the biological child of a USC,  which means the i130 is the only available path

Edited January 23, 2020 by payxibka

[Yugo1996 9]

3 minutes ago, payxibka said:

Unfortunately he is the biological child of a USC,  which means the i130 is the only available path

From research the I-130 is a long process and basically re-doing the entire process we did for the I-129. Would it be best if I just waited and acquired the few months left for him to be eligible for Consular Report of Abroad and then apply for him, and have my fiancee just come here and get married and then return back after we applied for adjustment of status. 

Thank you for helping us, really disappointed that my attorney did not know this knowledge when applying, I would have returned back and just went through with the marriage visa instead of the K-1. We just wanted to be reunited as soon as possible. 

[payxibka 10,045]

Just now, Yugo1996 said:

From research the I-130 is a long process and basically re-doing the entire process we did for the I-129. Would it be best if I just waited and acquired the few months left for him to be eligible for Consular Report of Abroad and then apply for him, and have my fiancee just come here and get married and then return back after we applied for adjustment of status. 

Thank you for helping us, really disappointed that my attorney did not know this knowledge when applying, I would have returned back and just went through with the marriage visa instead of the K-1. We just wanted to be reunited as soon as possible. 

You needed to be eligible to pass citizenship at the day of birth, it is not something that can be passed later on.

[Yugo1996 9]

1 minute ago, payxibka said:

You needed to be eligible to pass citizenship at the day of birth, it is not something that can be passed later on.

So then he technically isn't eligible or isn't a child of a United States Citizen since I did not meet the criteria for his citizenship to be transferred to him when he was born. He is a citizen of my country and has my home countries passport, identity number etc. 

So then he would be considered only a child with one citizenship and should be considered eligible for a K-2 as the requirement requires only the child to be under 21, and some minor things as the child to not have been married etc but doesn't really apply to us. In the requirements it states that it doesn't matter that if the child was biological, adopted, etc as long as it falls under the criteria that he or she is not over the age of 21. Sorry but everywhere I go enters a grey area, to which I even had the embassy questioning if its possible or not. 

I just hope everything works out tomorrow, and if not to have at least Plan B and Plan C ready at hand at least in my head. 

[payxibka 10,045]

5 minutes ago, Yugo1996 said:

So then he technically isn't eligible or isn't a child of a United States Citizen since I did not meet the criteria for his citizenship to be transferred to him when he was born. He is a citizen of my country and has my home countries passport, identity number etc. 

So then he would be considered only a child with one citizenship and should be considered eligible for a K-2 as the requirement requires only the child to be under 21, and some minor things as the child to not have been married etc but doesn't really apply to us. In the requirements it states that it doesn't matter that if the child was biological, adopted, etc as long as it falls under the criteria that he or she is not over the age of 21. Sorry but everywhere I go enters a grey area, to which I even had the embassy questioning if its possible or not. 

I just hope everything works out tomorrow, and if not to have at least Plan B and Plan C ready at hand at least in my head. 

You were a USC just not eligible to pass citizenship.  Even if you were not at the time of birth,  you are now.  

 

If it's any consolation, once the child (under 18) arrives in the USA on the immigrant visa, he will automatically become a US citizen the moment he steps foot on US soil.

Edited January 23, 2020 by payxibka

[Yugo1996 9]

Just now, payxibka said:

You were a USC just not eligible to pass citizenship.  Even if you were not at the time of birth,  you are now.  

I don't understand. So I didn't reach the criteria of Birth Abroad and could not pass my citizenship to my child, and I won't be able to pass my citizenship to my child at all anymore through Birth of Abroad since at the time of his birth I wasn't eligible even tho in a few months I would be eligible.

And the fact is that my child who is not eligible for Birth of Abroad ever, since at the time of his Birth I was not able to pass citizenship to him, is also not eligible for a K-2 because I am a citizen of the United States and he cannot obtain a K-2 Visa because of it. Well that is

[payxibka 10,045]

1 minute ago, Yugo1996 said:

I don't understand. So I didn't reach the criteria of Birth Abroad and could not pass my citizenship to my child, and I won't be able to pass my citizenship to my child at all anymore through Birth of Abroad since at the time of his birth I wasn't eligible even tho in a few months I would be eligible.

And the fact is that my child who is not eligible for Birth of Abroad ever, since at the time of his Birth I was not able to pass citizenship to him, is also not eligible for a K-2 because I am a citizen of the United States and he cannot obtain a K-2 Visa because of it. Well that is

The issue is not the citizenship of the child,  it is your citizenship and your relationship with the child. 

[Yugo1996 9]

6 minutes ago, payxibka said:

The issue is not the citizenship of the child,  it is your citizenship and your relationship with the child. 

So the best option or only option I have is to apply for the I-130 and re-do the entire process again. 

Will my fiancee at least be able to come to the U.S. and for us the get married and then have her return and wait for the I-130 to be approved for my son?

[payxibka 10,045]

Just now, Yugo1996 said:

So the best option or only option I have is to apply for the I-130 and re-do the entire process again. 

Will my fiancee at least be able to come to the U.S. and for us the get married and then have her return and wait for the I-130 to be approved for my son?

Theoretically if she has a Visa.   Make sure you understand the travel restrictions associated with the k1

[carmel34 3,621]

Contact the embassy and delay the K-1 interview, explain that you are filing an I-130 petition for your child, and once the petition gets to USCIS, request an expedite, then again at NVC request an expedite.  If the expedites are approved and you can delay the K-1 interview, they can both go later for their visa interviews and then enter the US together in a few months if all goes well.  So sorry that the attorney gave you bad advice.  Good luck!

[carmel34 3,621]

3 minutes ago, Yugo1996 said:

Will my fiancee at least be able to come to the U.S. and for us the get married and then have her return

If she enters the US on a K-1 she can't leave and re-enter until she has AP or green card, about six months after filing for AOS.

[Orangesapples 1,954]

1 hour ago, Yugo1996 said:

So then he technically isn't eligible or isn't a child of a United States Citizen since I did not meet the criteria for his citizenship to be transferred to him when he was born. 

He's most definitely a child of a United States citizen, as he is your child and you are a US citizen. He's just not a US citizen himself. 

Edited January 23, 2020 by Orangesapples