Who files - stepdad or me?

[R&OC 371]

Dear all,

 

who files the I-130 for my kids? Do I or my husband?

 

I am a newly naturalised US citizen under 319 (b). My children from my first marriage, my husband (their stepdad) and I are living overseas on my husbands overseas military orders (we all are and the kids are his dependents). So both my husband and I are US citizens and my kids have a European citizenship.

 

We have never filed for their Greencard because their biological dad would not support a petition AND more importantly, the kids didn't want to leave their Dad behind. Hence, my husband decided to try for overseas orders and here we are now. We are now planning ahead for his next military tour in two years time, though. The kids would now like to come with us with the understanding that we keep flying them back to Europe for each school vacation.

 

But who files for them? My husband or I? Would they automatically naturalise upon entering the US and activating their LPs status? My kids are 10 and 13 years old.

 

 

[milimelo 4,477]

You’re a USC, file for them. 

[payxibka 10,045]

3 hours ago, R&OC said:

Dear all,

 

who files the I-130 for my kids? Do I or my husband?

 

I am a newly naturalised US citizen under 319 (b). My children from my first marriage, my husband (their stepdad) and I are living overseas on my husbands overseas military orders (we all are and the kids are his dependents). So both my husband and I are US citizens and my kids have a European citizenship.

 

We have never filed for their Greencard because their biological dad would not support a petition AND more importantly, the kids didn't want to leave their Dad behind. Hence, my husband decided to try for overseas orders and here we are now. We are now planning ahead for his next military tour in two years time, though. The kids would now like to come with us with the understanding that we keep flying them back to Europe for each school vacation.

 

But who files for them? My husband or I? Would they automatically naturalise upon entering the US and activating their LPs status? My kids are 10 and 13 years old.

 

 

Either are eligible to petition 

[aaron2020 11,651]

Since you are both US citizens, either of you can file for the kids.  Probably best if you filed for your own kids.  You will need the biological father to give written permission or obtain a court order allowing the kids to immigrate to the US.  

[SusieQQQ 11,586]

5 hours ago, R&OC said:

Would they automatically naturalise upon entering the US and activating their LPs status? My kids are 10 and 13 years old.

As you are a citizen, if they enter on immigrant visas/become LPRs, are under 18, and are in your physical and legal custody, yes. The last category is important. As Aaron mentioned, you will need permission from their father for them to immigrate. Note that the requirement to prove legal custody for naturalization purposes is more stringent than that required for them to get a visa, so you may as well kill two birds with one stone by making sure that the proof you get for the visa satisfies the naturalization requirements too. For example notarized written permission may be enough for a visa, but it’s not sufficient for naturalization.  See sections B and E here https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-4 - the short version is get documentation showing legal custody.

[R&OC 371]

6 hours ago, aaron2020 said:

Since you are both US citizens, either of you can file for the kids.  Probably best if you filed for your own kids.  You will need the biological father to give written permission or obtain a court order allowing the kids to immigrate to the US.  

That’s the main reason why we waited. The kids need to be fully on board AND old enough to voice an opinion. As of the age of 10 kids have are having a „voice“ in the family court.