Minor Child Following-To-Join Parent Already In the US

[ItsSunny2Day 17]

Hello Fellow Visa Journey Members,

Your collective wisdom is sought.

Background:
 

I am a US Citizen. In 2018 I was living in Mexico with my non-US Citizen wife and one of two non-US Citizen stepchildren (minors). As we were living outside the United States, we submitted all the necessary forms via Direct Consul Filing (DCF). That in itself was absolutely amazing as the entire process from start to interview took approximately 5 months. 

Both minor children were listed on the original I-130. As only one minor child was living with us at the time, we filed the request for the immigrant visa only for that one child.
 

On the second anniversary of living in the United States, my wife and one step-child (minor) have applied to remove the conditions of their residency.  Based on what we read on the internet, that condition may take up to ten months to be removed. By then, three years will have past, and they can apply for Citizenship.

Now the time has come to have the second minor child join us here in the US. Based on what I have shared with you:

- what are the next steps in the process?
- has the original/approved I-130 expired for the second minor child? 

- under what circumstances can the processes be fast-tracked?
- what role, if any, does the I-824 Application for Action on an Approved Application play in this?
- should the minor child simply enter the US as a non-immigrant, and then we request an Adjustment of Status locally?

 

We are quite confused. Searching both the internet and forum here, we have found several answers to the same questions. We are hoping that you will enlighten us. Thanks in advance.

Edited June 6, 2020 by ItsSunny2Day

[milimelo 4,479]

If you only ever filed a single I-130 (for the child that’s now removing conditions), you need a new I-130 for the other child. 

[geowrian 22,337]

NOTE: This is not a Follow-To-Join (FTJ) scenario. That's for derivatives. The visa class here does not allow derivatives. This is just a normal visa process for a stepchild of a USC.

 

I'm assuming the the "minor child" is still under 21 (and became your stepchild before age 16).

 

To clarify, was an I-130 filed for that child? Because your question implies they had their own I-130, but your statement earlier said "Both minor children were listed on the original I-130", which implies there was only one I-130. Can you clarify how many I-130 petitions were filed?

The best answer to the other questions depends on the response to the above

 

An I-130 does not expire. It can be sent to the NRC and even eventually destroyed. But if it's still alive, it remains valid.

 

27 minutes ago, ItsSunny2Day said:

should the minor child simply enter the US as a non-immigrant, and then we request an Adjustment of Status locally?

That is illegal. One must use the proper visa to enter the US with intent to immigrate.

[ItsSunny2Day 17]

25 minutes ago, milimelo said:

If you only ever filed a single I-130 (for the child that’s now removing conditions), you need a new I-130 for the other child. 

Hello Milomelo, thanks for your reply. I will address the I-130 in the next post. - Sunny

[ItsSunny2Day 17]

22 minutes ago, geowrian said:

NOTE: This is not a Follow-To-Join (FTJ) scenario. That's for derivatives. The visa class here does not allow derivatives. This is just a normal visa process for a stepchild of a USC.

 

I'm assuming the the "minor child" is still under 21 (and became your stepchild before age 16).

 

To clarify, was an I-130 filed for that child? Because your question implies they had their own I-130, but your statement earlier said "Both minor children were listed on the original I-130", which implies there was only one I-130. Can you clarify how many I-130 petitions were filed?

The best answer to the other questions depends on the response to the above

 

An I-130 does not expire. It can be sent to the NRC and even eventually destroyed. But if it's still alive, it remains valid.

 

That is illegal. One must use the proper visa to enter the US with intent to immigrate.

Hello Geowrian,

 

I thought the FTJ applies here, as derivaties are the minor children who automatically gain the benefit of immigrating, because of their mom, marrying a US Citizen?
 

Both step children are under 21. At the time of our marriage, where 9 and 13 years of age. Now they are 11 and 15.

 

When I submitted the one I-130 in 2018, I entered/disclosed the names(s) of both minor children. At the time, one minor child was living with dad, and the other minor child was with mom. When I filed the I-864 Affidavit of Support, I only listed mom and one minor step child, as they were with me in Mexico at the time.

 

Regards,

Sunny

[geowrian 22,337]

18 minutes ago, ItsSunny2Day said:

I thought the FTJ applies here, as derivaties are the minor children who automatically gain the benefit of immigrating, because of their mom, marrying a US Citizen?

A spouse or under 21 unmarried child are valid derivatives.

However, Immediate Relative (IR and CR) visas do not permit derivative beneficiaries. An I-130 is required for each beneficiary. Other visa categories permit derivatives.

 

18 minutes ago, ItsSunny2Day said:

When I submitted the one I-130 in 2018, I entered/disclosed the names(s) of both minor children. At the time, one minor child was living with dad, and the other minor child was with mom. When I filed the I-864 Affidavit of Support, I only listed mom and one minor step child, as they were with me in Mexico at the time.

And they issued a visa to the one stepchild without a separate I-130 for the stepchild...?

That should never happen...I'm thinking there was more here than you may recall offhand. They simply cannot issue a CR-2 visa to a stepchild without their own I-130 petition...it would either be a mistake to do so or there was actually another I-130.

 

See here: https://fam.state.gov/fam/09FAM/09FAM050202.html

Quote

9 FAM 502.2-2(B)  Immediate Relative Defined

(CT:VISA-1063;   04-28-2020)

 

a. The Immigration and Nationality Act (INA) defines “immediate relative” to include the following:

(1)  Spouse of a U.S. citizen (see “Marriage” in 9 FAM 102.8-1 Definitions);

...

(3)  Child of a U.S. citizen (see “Child” in 9 FAM 102.8-2(A) Definitions);

...

d. Derivative Immediate Relative Status for Spouses or Children:

(1)  The INA does not generally accord derivative status for family members of immediate relatives as it does for preference applicants.  (INA 203(d) does not apply to the classes described in INA 201(b)).  A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent.

similarly, for a visa category that does allow derivatives, note that:

Quote

c.  Filing Petitions for Derivative Aliens:  Careful attention should be paid to cases where a derivative beneficiary's immigration status is likely to change.

...

(2)  Likewise, if the petitioner intends to become a U.S. citizen before his or her spouse and children have immigrated to the United States, the petitioner should file separate immigrant visa petitions for any children who are currently deriving their immigration status through the spouse.  That way, when the petitioner is naturalized, the petition according second preference status (F21) to the spouse, as well as those petitions according second preference status (F22) to any children, will be converted automatically to accord the beneficiaries immediate relative status (IR1 or IR2).  If, however, the petitioner does not file separate petitions for his or her children before naturalization, the children will lose their derivative status upon the petitioner's naturalization, since the spouse's status will automatically convert to IR1 and there is no derivative status for immediate relatives.  The petitioner will then have to file new petitions on their behalf to accord them IR2 status.

 

[aaron2020 11,651]

When a USC petitions for a spouse, derivatives are never allowed.

Don't know how you got the first child to the US if you filed a single I-130 for your wife.  

You will need to file an I-130 for the child to begin the immigration process for the second child.  

[ItsSunny2Day 17]

12 minutes ago, geowrian said:

A spouse or under 21 unmarried child are valid derivatives.

However, Immediate Relative (IR and CR) visas do not permit derivative beneficiaries. An I-130 is required for each beneficiary. Other visa categories permit derivatives.

 

And they issued a visa to the one stepchild without a separate I-130 for the stepchild...?

That should never happen...I'm thinking there was more here than you may recall offhand. They simply cannot issue a CR-2 visa to a stepchild without their own I-130 petition...it would either be a mistake to do so or there was actually another I-130.

 

See here: https://fam.state.gov/fam/09FAM/09FAM050202.html

similarly, for a visa category that does allow derivatives, note that:

 

As it was two years ago, I am the first to admit, all is confusing. However we double checked the paperwork in our well organized binder and also the Cover Letter used to send in the original documents. A single I-130 and I-130A was submitted with the names of my foreign wife, and two foreign minor step children. When the US Consulate issued the Visa in their Passports, my wifes reads CR-1, and my step childs reads CR-2.

 

Both children were unmarried.

 

When submitting the DS-260, both minor childrens name appeared.

 

Back in 2018 we followed to the T the instructions/step by step guide found here on Visa Journey. 

[geowrian 22,337]

Assuming that was the case, then the visa was issued in error.

 

Either way, since there is no I-130 for the child already, one needs to be filed now.

DCF would no longer be a viable option here, so you would need to file the I-130 domestically. This will take several months to adjudicate, depending on service center. the timelines for this are the same as for a spouse when filing domestically (https://www.visajourney.com/timeline/irstats.php?cfl=).

You can request an expedite if you meet the criteria: https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5

I would encourage you to request the expedite...no harm in doing so.

 

Then it goes to NVC for processing: https://www.visajourney.com/wiki/index.php/NVC_Process

That's where the I-864 and DS-260 and such are handled.

Then it will sit there until an interview at CDJ can be scheduled.

You can request an expedite at this stage as well. The decision to approve it or not would be with CDJ.

 

CDJ was extremely backlogged (~9+ months or so for an interview) before the COVID-19 suspension of visa services in March, and is likely months more behind now.

An expedited interview can be requested with sufficient reason (if an expedite was not obtained at the NVC stage previously).

[HRQX 4,145]

1 hour ago, geowrian said:

(and became your stepchild before age 16).

*before age 18

https://fam.state.gov/fam/09FAM/09FAM010208.html "All that is required is that the child be under the age of 18 at the time the marriage creating the status of stepchild occurred.  A stepparent/stepchild relationship can also be established for children who were born subsequent to the marriage between the natural parent and the stepparent."

[geowrian 22,337]

11 minutes ago, HRQX said:

*before age 18

https://fam.state.gov/fam/09FAM/09FAM010208.html "All that is required is that the child be under the age of 18 at the time the marriage creating the status of stepchild occurred.  A stepparent/stepchild relationship can also be established for children who were born subsequent to the marriage between the natural parent and the stepparent."

Good catch...yes, I meant 18.

(I need to slow down on my typing...typos are getting pretty bad!)

[ItsSunny2Day 17]

35 minutes ago, geowrian said:

Assuming that was the case, then the visa was issued in error.

 

Either way, since there is no I-130 for the child already, one needs to be filed now.

DCF would no longer be a viable option here, so you would need to file the I-130 domestically. This will take several months to adjudicate, depending on service center. the timelines for this are the same as for a spouse when filing domestically (https://www.visajourney.com/timeline/irstats.php?cfl=).

You can request an expedite if you meet the criteria: https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5

I would encourage you to request the expedite...no harm in doing so.

 

Then it goes to NVC for processing: https://www.visajourney.com/wiki/index.php/NVC_Process

That's where the I-864 and DS-260 and such are handled.

Then it will sit there until an interview at CDJ can be scheduled.

You can request an expedite at this stage as well. The decision to approve it or not would be with CDJ.

 

CDJ was extremely backlogged (~9+ months or so for an interview) before the COVID-19 suspension of visa services in March, and is likely months more behind now.

An expedited interview can be requested with sufficient reason (if an expedite was not obtained at the NVC stage previously).

Understood, and thanks for the links. We found this:

 

https://www.uscis.gov/family/family-us-citizens/bringing-children-sons-and-daughters-live-united-states-permanent-residents

 

If you are a U.S. citizen, once you file Form I-130, your child is eligible to apply for a nonimmigrant K-4 visa. This will entitle him or her to come to the United States to live and work or go to school while the visa petition is pending. To petition for this benefit, you may file Form I-129F. However, you are not required to file Form I-129F and your child does not require a K-4 visa. Your child may wait abroad for immigrant visa processing. Seeking a K-4 visa can be a method for him or her to come to the United States more quickly. For more information, see the “K3-K4 Visa” page.

 

#

 

To all who have contributed to this thread, a continued many thanks.

 

 

 

[geowrian 22,337]

6 minutes ago, ItsSunny2Day said:

Understood, and thanks for the links. We found this:

 

https://www.uscis.gov/family/family-us-citizens/bringing-children-sons-and-daughters-live-united-states-permanent-residents

 

If you are a U.S. citizen, once you file Form I-130, your child is eligible to apply for a nonimmigrant K-4 visa. This will entitle him or her to come to the United States to live and work or go to school while the visa petition is pending. To petition for this benefit, you may file Form I-129F. However, you are not required to file Form I-129F and your child does not require a K-4 visa. Your child may wait abroad for immigrant visa processing. Seeking a K-4 visa can be a method for him or her to come to the United States more quickly. For more information, see the “K3-K4 Visa” page.

A K-4 visa is a derivative of a K-3 beneficiary. There's no K-3 possible here (let alone K-3 being essentially obsolete for at least the past several years...only a small handful being issued worldwide).

[aaron2020 11,651]

49 minutes ago, geowrian said:

Assuming that was the case, then the visa was issued in error.

 

Either way, since there is no I-130 for the child already, one needs to be filed now.

DCF would no longer be a viable option here, so you would need to file the I-130 domestically. This will take several months to adjudicate, depending on service center. the timelines for this are the same as for a spouse when filing domestically (https://www.visajourney.com/timeline/irstats.php?cfl=).

You can request an expedite if you meet the criteria: https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5

I would encourage you to request the expedite...no harm in doing so.

 

Then it goes to NVC for processing: https://www.visajourney.com/wiki/index.php/NVC_Process

That's where the I-864 and DS-260 and such are handled.

Then it will sit there until an interview at CDJ can be scheduled.

You can request an expedite at this stage as well. The decision to approve it or not would be with CDJ.

 

CDJ was extremely backlogged (~9+ months or so for an interview) before the COVID-19 suspension of visa services in March, and is likely months more behind now.

An expedited interview can be requested with sufficient reason (if an expedite was not obtained at the NVC stage previously).

This is the correct path that you need to take.  

I applaud you for being creative.   If there was a better way, we would have told you.  Unfortunately, immigration to the US is slow.  You were extremely fortunate to get it done in 5 months by DCF.

[ItsSunny2Day 17]

13 hours ago, geowrian said:

A K-4 visa is a derivative of a K-3 beneficiary. There's no K-3 possible here (let alone K-3 being essentially obsolete for at least the past several years...only a small handful being issued worldwide).

I understand what you wrote me, but based on what I am reading from the link, I am disagreeing with you. Take a look at the entire page. 

How is it that I would not qualify to follow this path? I am a US Citizen, my foreign wife is the Permanent Resident. We are both living in the United States.

There is one unmarried minor child (my step child by marriage, and her blood child) we are looking to bring to the US.