priority date?

[D Allen 0]

Good evening. I have a question related to immigration of my stepkids, who are
currently here on tourist visas. I will give some background then pose a question. 

My wife was here on a tourist visa and we got married in 2018. My immigration attorney told me we needed a k-1 visa, which got denied (since we were already married). 
Attorney filed the I-130, which eventually got approved, so wife now has Nov 2018 priority date on her I-797C. While the I-130 was pending , my two stepchildren came to live with us on a tourist visa. 
To date, this is what I have done regarding the kids.
1)Filed the I-485, as derivative applicants, and submitted all supporting paperwork
2) Submitted the I-864
3) Submitted the I-944 (after USCIS sent me a notification stating this new form MUST be attached to the application)
3) Submitted all required attachments to the above documents.
Finally, my question: The kids I-485 applications have been rejected, USCIS saying they did not have a ‘priority date’ for the two kids. Could I simply just make a copy of my wife’s I-797 and attach it on top of the kids applications and resubmit , or do I need to file a separate I-130 for each minor child? I thought the I-130 was for immigrant visas, but my kids are already here , on US soil. They are on tourist visas, and have applied for permanent residency as derivative applicants on their I-4. 

 

Any advice would be appreciated.

[SalishSea 18,161]

4 minutes ago, D Allen said:

Good evening. I have a question related to immigration of my stepkids, who are
currently here on tourist visas. I will give some background then pose a question. 

My wife was here on a tourist visa and we got married in 2018. My immigration attorney told me we needed a k-1 visa, which got denied (since we were already married). 
Attorney filed the I-130, which eventually got approved, so wife now has Nov 2018 priority date on her I-797C. While the I-130 was pending , my two stepchildren came to live with us on a tourist visa. 
To date, this is what I have done regarding the kids.
1)Filed the I-485, as derivative applicants, and submitted all supporting paperwork
2) Submitted the I-864
3) Submitted the I-944 (after USCIS sent me a notification stating this new form MUST be attached to the application)
3) Submitted all required attachments to the above documents.
Finally, my question: The kids I-485 applications have been rejected, USCIS saying they did not have a ‘priority date’ for the two kids. Could I simply just make a copy of my wife’s I-797 and attach it on top of the kids applications and resubmit , or do I need to file a separate I-130 for each minor child? I thought the I-130 was for immigrant visas, but my kids are already here , on US soil. They are on tourist visas, and have applied for permanent residency as derivative applicants on their I-4. 

 

Any advice would be appreciated.

They still need to be petitioned with the I-130. They're not derivatives on any petition.   How old were they when you married their mother?

[payxibka 10,047]

Time to get rid of that attorney 

[designguy 1,179]

A child does not receive derivative status in an immediate relative (IR) petition. This is different from the family second preference (F2) petition where a child is included in his/her parent's F2 petition.

https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/immigrant-visa-for-spouse.html

 

 

Also if you were considering them as derivates and then had them enter the US on tourist visas with the intention to live here and adjust status, that would be visa fraud.

Edited July 11, 2020 by designguy

[JFH 12,191]

1 hour ago, D Allen said:

my two stepchildren came to live with us on a tourist visa. 
 

And that was explained to the CBP Officer when they arrived? If so, I’m very surprised they were allowed to enter. But that’s water under the bridge now...

 

Immediate relative petitions do not have derivatives. Assuming they are under 18, you will need to file (and pay for) I-130 petitions for each of them. If they were over 18 when you married their mother, they are not your step-children in the eyes of immigration and you cannot petition them. And if they were under 18 at the time of the marriage but are now over 18 they cannot file for adjustment of status, due to the priority date not being current. 

 

[D Allen 0]

They were both under 18. One 13, the 12.

[JFH 12,191]

*~*~*moved from “what visa do I need?” to “adjustment of status from work/study/tourist visas” as the beneficiaries are adjusting status, not applying for a visa*~*~*

[JFH 12,191]

4 hours ago, D Allen said:

They were both under 18. One 13, the 12.

So you qualify to petition them as the step-parent. Which country are they from? There may be an issue if their other parent did not give consent for them to be removed from their home land permanently. In some countries that’s international kidnapping and you don’t want that on your hands as well. 
 

File their adjustment of status paperwork immediately, including the I-130s. If their I-94s have expired then they are in overstay until you get the receipt notice that the paperwork has been accepted. 

Edited July 12, 2020 by JFH

[D Allen 0]

21 hours ago, JFH said:

 

They are from Mexico and their father is very supportive of their move to the US.

Thanks for all the advice.