I-130 is approved after 5 years. Several issues emerged.

[AlexNY 9]

Greetings VJ members.

I'm helping someone after their I-130 was approved. I found several issues with their case and need help on what's the best way to resolve the problems.

 

1st issue is the easiest one. USC petitioned for her son over 21 years old when she was a green card holder in 2015. She became a citizen in 2018. She received a notice of immigrant visa case creation. When I went online to check I found that their visa class is F11 now which is "Unmarried son or daughter of U.S. citizen". I guess USCIS found out that the petitioner became a citizen and changed type of visa to F11 instead of F24. It means that we don't need to notify anyone about petitioner's citizenship. Is my conclusion correct?

 

2nd issue. When petitioner filed I-130 her son was unmarried and had a 1 year son, grandson of petitioner who was included in petition by USC. At that time petitioner's son lived with his girlfriend who was the mother of their 1 year old kid. When that kid was born they gave him mother's last name. On top of that the father had his girlfriend's last name in their child's birth certificate. I don't know why his last name was changed to his girlfriend's one even though he never changed his last name (maybe it's not important because of the third issue that I describe below). In a year or so applicant married his girlfriend. As of now they are still married. And it means they need F31 category visa. So what are their options in this case? How should we proceed with their approved petition? Just to make it clear his wife was never included in petition because he was not married.

 

3rd issue may be even more complicated. When USC included the kid of her son in petition she used that last name that was in the birth certificate. However, when her son and his girlfriend got married, the wife took her husband's last name. And they decided to revoke their son's old birth certificate and receive a new one with the new last name for their son. Old birth certificate can't be retrieved. Old last name isn't used anywhere in official documents for that child. So what we got now is that the petitioner used old last name for her grandson in their petition. Now he has his father's one. How can we resolve this issue now?

 

Thank you in advance.

[geowrian 22,338]

12 minutes ago, AlexNY said:

2nd issue. When petitioner filed I-130 her son was unmarried and had a 1 year son, grandson of petitioner who was included in petition by USC. At that time petitioner's son lived with his girlfriend who was the mother of their 1 year old kid. When that kid was born they gave him mother's last name. On top of that the father had his girlfriend's last name in their child's birth certificate. I don't know why his last name was changed to his girlfriend's one even though he never changed his last name (maybe it's not important because of the third issue that I describe below). In a year or so applicant married his girlfriend. As of now they are still married. And it means they need F31 category visa. So what are their options in this case? How should we proceed with their approved petition? Just to make it clear his wife was never included in petition because he was not married.

This is possibly a killer issue. Did the son (beneficiary) marry before or after the petitioner became a US citizen?

Edit: The timeline posted implies so, but I want to 100% confirm as this is critical.

Edited May 1, 2020 by geowrian

[AlexNY 9]

14 minutes ago, geowrian said:

This is possibly a killer issue. Did the son (beneficiary) marry before or after the petitioner became a US citizen?

Edit: The timeline posted implies so, but I want to 100% confirm as this is critical.

He married 2-3 years before petitioner became a citizen.

[Just Paul 4,595]

1 minute ago, AlexNY said:

He married 2-3 years before petitioner became a citizen.

Then the petition for the son is invalid.  There is no Visa for Married Sons of LPR.

 

Mother needs to file again.

[geowrian 22,338]

Just now, AlexNY said:

He married 2-3 years before petitioner became a citizen.

Then the petition is invalid. The moment he married, he no longer qualified for any immigrant visa category based upon that petition, so it automatically became invalidated.

USCIS just didn't learn of it, but it'll happen at NVC when the marriage documentation is provided.

Becoming eligible again later (via the petitioner naturalizing) does not reinstate the petition.

 

Unfortunately, he's not going to qualify for an immigrant visa based on that petition. A new one can be file under F3 category, but that means waiting the ~12+ years or so.

[AlexNY 9]

Thank you so much.

[AlexNY 9]

13 hours ago, geowrian said:

Then the petition is invalid. The moment he married, he no longer qualified for any immigrant visa category based upon that petition, so it automatically became invalidated.

USCIS just didn't learn of it, but it'll happen at NVC when the marriage documentation is provided.

Becoming eligible again later (via the petitioner naturalizing) does not reinstate the petition.

 

Unfortunately, he's not going to qualify for an immigrant visa based on that petition. A new one can be file under F3 category, but that means waiting the ~12+ years or so.

Theoretically speaking, if the son gets divorced his mother can submit I-130 again for F1 category, right?

[Just Paul 4,595]

3 hours ago, AlexNY said:

Theoretically speaking, if the son gets divorced his mother can submit I-130 again for F1 category, right?

In theory?  Sure. But things can unravel if he then remarries and tries to petition the mother of his child.  Just as getting married to obtain an immigration benefit, so can divorcing (and remarrying)

 

It is unfortunate they couldn't follow the rules to begin with. Based on the timeline you provided he got married a year or so after his petition was filed.

[geowrian 22,338]

4 hours ago, AlexNY said:

Theoretically speaking, if the son gets divorced his mother can submit I-130 again for F1 category, right?

Yes. Or she could submit it under F3 now, and if he divorces later, it still moves to F1 automatically.

 

The issue they ran into is they married while still having an LPR petitioner and there is no category for a married son/daughter of an LPR. So the petition became instantly invalid. If one moves from one category to another (like F3 to F1), then the petition remains valid.

Edited May 2, 2020 by geowrian

[SusieQQQ 11,587]

1 hour ago, geowrian said:

Yes. Or she could submit it under F3 now, and if he divorces later, it still moves to F1 automatically.

 

The issue they ran into is they married while still having an LPR petitioner and there is no category for a married son/daughter of an LPR. So the petition became instantly invalid. If one moves from one category to another (like F3 to F1), then the petition remains valid.

Mom should have notified uscis to withdraw his petition when he got married (did she just forget what category she had filed for or did she not realize it had become invalidated?), and then filed a F3 petition for him and his wife when she became a citizen. Wasted a few years now.

[Boiler 46,003]

6 hours ago, AlexNY said:

Theoretically speaking, if the son gets divorced his mother can submit I-130 again for F1 category, right?

Theoretically how would his then ex wife feel about letting their child immigrate in such a situation?

[SusieQQQ 11,587]

22 minutes ago, Boiler said:

Theoretically how would his then ex wife feel about letting their child immigrate in such a situation?

Or, how would the theoretical ex wife feel when they subsequently remarry but a green card application for her is refused as per Paul&Mary post above?

[Boiler 46,003]

Just now, SusieQQQ said:

Or, how would the theoretical ex wife feel when they subsequently remarry but a green card application for her is refused as per Paul&Mary post above?

A lot of theoreticals.

[AlexNY 9]

Don't worry guys. I know it sounds suspicious. Beneficiary and his wife had some serious problems in terms of infidelity. The mother wanted them to get divorced the last year; however, her son is still puzzled. So she's going to try to have them divorced again. I don't really care what's going to happen, it isn't my business; I'm just letting them know about their options and possible consequences.

16 hours ago, SusieQQQ said:

Mom should have notified uscis to withdraw his petition when he got married (did she just forget what category she had filed for or did she not realize it had become invalidated?), and then filed a F3 petition for him and his wife when she became a citizen. Wasted a few years now.

She should've but you know not many people understand what immigration is and how the rules are applied. Someone helped her to file I-130 but that person never told her what it was all about and what they couldn't do after that.

 

16 hours ago, Boiler said:

Theoretically how would his then ex wife feel about letting their child immigrate in such a situation?

It's a good question. I'm wondering too. By the law of their country she will need to give notarized explicit permission with attorney. I don't think she will but as I said it's not my business. USC mother wants to give it a try.

[SusieQQQ 11,587]

1 hour ago, AlexNY said:

Don't worry guys. I know it sounds suspicious. Beneficiary and his wife had some serious problems in terms of infidelity. The mother wanted them to get divorced the last year; however, her son is still puzzled. So she's going to try to have them divorced again. I don't really care what's going to happen, it isn't my business; I'm just letting them know about their options and possible consequences.

She should've but you know not many people understand what immigration is and how the rules are applied. Someone helped her to file I-130 but that person never told her what it was all about and what they couldn't do after that.

 

It's a good question. I'm wondering too. By the law of their country she will need to give notarized explicit permission with attorney. I don't think she will but as I said it's not my business. USC mother wants to give it a try.

Holy cow,  “The mother wanted them to get divorced the last year; ... So she's going to try to have them divorced again.” Seriously? Maybe better the son stays away so he can live his own life and decide on his own who he does and doesn’t stay married to 🤦‍♀️  And yes a petition without the wife will need her legal permission for the kid to go with - which given what you’ve just described above, maybe the wife is even less inclined to allow her kid to go to live with a person deliberately trying to get rid of her.  
 

Anyway all that soap opera plot notwithstanding, the critical thing is that current petition is invalid and a new one needs to be filed. 

Edited May 3, 2020 by SusieQQQ