I-130 Adopted Child

[aaron2020 11,651]

For her sake, go and get competent legal advice from an immigration attorney.  

 

Best wishes to your family.  

[David & Paulyn 22]

2 minutes ago, aaron2020 said:

For her sake, go and get competent legal advice from an immigration attorney.  

 

Best wishes to your family.  

Thank you. I will.

[David & Paulyn 22]

6 minutes ago, SusieQQQ said:

 The adoption may not have been for immigration purposes, but you are basing your i130 for her on the fact that she is your adopted daughter. Again, please get legal advice. USCIS generally does not care when things start, they care when things finish - ask all those derivatives who have aged out waiting for a visa.

She is still under 21 and unmarried. Even if she doesn't qualify for INA 320, she is still an immediate relative, correct? Yes, I will speak to a lawyer.

[SusieQQQ 11,586]

28 minutes ago, David & Paulyn said:

She is still under 21 and unmarried. Even if she doesn't qualify for INA 320, she is still an immediate relative, correct? Yes, I will speak to a lawyer.

She is only an immediate relative for immigration purposes if the parent-child relationship is a valid one for immigration purposes. For adopted children, as Aaron has stated a couple of times, for an adopted child this requires the adoption to have been finalized by age 16. This is the problem,again, just being legally adopted is not enough and this is where you need to get competent legal advice, to see whether or not your perception that it is somehow ok that the adoption was finalized after age 16 is valid in the context of immigration law. 

[David & Paulyn 22]

1 minute ago, SusieQQQ said:

She is only an immediate relative for immigration purposes if the parent-child relationship is a valid one for immigration purposes. For adopted children, as Aaron has stated a couple of times, for an adopted child this requires the adoption to have been finalized by age 16. This is the problem,again, just being legally adopted is not enough and this is where you need to get competent legal advice, to see whether or not your perception that it is somehow ok that the adoption was finalized after age 16 is valid in the context of immigration law. 

I have been married to her mother since 2011. Even if USCIS goes back to their harsher enforcement of when an adoption is considered finalized (https://levin-immigration.com/bia-holds-that-an-i-130-beneficiary-with-a-retroactive-adoption-date-can-qualify-as-a-child-adopted-under-the-age-of-16/), won't she still be considered as a stepdaughter?

[aaron2020 11,651]

4 minutes ago, David & Paulyn said:

I have been married to her mother since 2011. Even if USCIS goes back to their harsher enforcement of when an adoption is considered finalized (https://levin-immigration.com/bia-holds-that-an-i-130-beneficiary-with-a-retroactive-adoption-date-can-qualify-as-a-child-adopted-under-the-age-of-16/), won't she still be considered as a stepdaughter?

Yes, this is what you have not been getting.  You keep asking me why it's so hard for me to understand that she is no longer your stepdaughter.

You can not bring her to the US as your adopted daughter since the adoption was not completed before she turned 16.  Attempting to bring her as your adopted daughter will only be a waste of time and effort.

You can bring her to the US as your stepdaughter since your married mom before her 18th birthday.  This is the easiest way.

Go hire an immigration lawyer.  Her situation is now muddled with a birth certificate with you as the father.  

[SusieQQQ 11,586]

11 minutes ago, David & Paulyn said:

I have been married to her mother since 2011. Even if USCIS goes back to their harsher enforcement of when an adoption is considered finalized (https://levin-immigration.com/bia-holds-that-an-i-130-beneficiary-with-a-retroactive-adoption-date-can-qualify-as-a-child-adopted-under-the-age-of-16/), won't she still be considered as a stepdaughter?

Someone may correct me, but I don’t think you can submit an i130 and then decide later that there is another relationship to use. If you have filed for an adopted child and submitted evidence for that, they won’t magically change it to a stepchild, they will deny the petition and you will have to refile for a stepchild. The i130 form asks you to check one box only, of which stepchild and adopted child are different options. It is also different evidence. From the i130 instructions:

5 What documents do you need to prove family relationship?
You have to prove that there is a family relationship between you and the beneficiary. If you are filing for a relative listed below, submit the following documentation to prove the family relationship.

...

H. Stepparent/Stepchild: If your petition is based on a stepparent-stepchild relationship, you must file your petition with a copy of the marriage certificate of the stepparent to the child’s natural parent showing that the marriage occurred before the child turned 18 years of age, copies of documents showing that any prior marriages were legally terminated (if applicable), and a copy of the stepchild’s birth certificate.
I. Adoptive parent or adopted child: If you and the person you are filing for are related by adoption, you must submit a copy of the adoption decree showing that the adoption took place before the child turned 16 years of age.

 

USCIS will look at the claimed relationship in the first part and assess that on the evidence provided, they won’t search around for other options. 

[David & Paulyn 22]

9 minutes ago, aaron2020 said:

You can not bring her to the US as your adopted daughter since the adoption was not completed before she turned 16.  Attempting to bring her as your adopted daughter will only be a waste of time and effort.

 

Did you read up on the precedent decision that I linked to? They clearly decided that nunc pro tunc (retroactivity) is allowed.

[aaron2020 11,651]

Just now, David & Paulyn said:

Did you read up on the precedent decision that I linked to? They clearly decided that nunc pro tunc (retroactivity) is allowed.

You can go the simple route which is common and the US Embassy is familiar with, stepparent petitioning a stepchild, or you can go the hard route, adopted parent petitioning an adopted child finalized after age 16.  Your choice.  A simple article can not contain all the nuances encompassing all scenarios.  

[David & Paulyn 22]

2 minutes ago, aaron2020 said:

You can go the simple route which is common and the US Embassy is familiar with, stepparent petitioning a stepchild, or you can go the hard route, adopted parent petitioning an adopted child finalized after age 16.  Your choice.  A simple article can not contain all the nuances encompassing all scenarios.  

But as you said yourself, her birth certificate lists me as her father. She is already legally using my surname. 

 

https://www.justice.gov/eoir/file/627476/download

 

I have already filed and have already asked them to expedite. Should I not see this through?

[Boiler 45,525]

12 minutes ago, David & Paulyn said:

Did you read up on the precedent decision that I linked to? They clearly decided that nunc pro tunc (retroactivity) is allowed.

Have you discussed this option with your Lawyer?

[David & Paulyn 22]

6 minutes ago, aaron2020 said:

You can go the simple route which is common and the US Embassy is familiar with, stepparent petitioning a stepchild, or you can go the hard route, adopted parent petitioning an adopted child finalized after age 16.  Your choice.  A simple article can not contain all the nuances encompassing all scenarios.  

The hard route confers citizenship immediately and automatically once she is admitted as a LPR. The easy route only gives her a green card. I would prefer the hard route if there is a reasonable chance I could be approved.

[David & Paulyn 22]

Just now, Boiler said:

Have you discussed this option with your Lawyer?

We have not hired an attorney. With COVID etc our finances are already strained. But, before anyone asks, yes I qualify as sole sponsor.

[Boiler 45,525]

Lawyer would seem cheap insurance if you want to try the unusual route and who would argue the case other than a Lawyer?

[David & Paulyn 22]

3 minutes ago, Boiler said:

Lawyer would seem cheap insurance if you want to try the unusual route and who would argue the case other than a Lawyer?

If they respond with a NOID then we will have no choice but to hire an attorney.

Edited December 23, 2020 by David & Paulyn