Filing I-130 for a stepchild of USC - a few questions

[Riley and SP 17]

Hi guys!

 

I came to the USA three years ago on F-1 and got married last year. My husband is USC and we filed AOS paperwork on August 3, 2020.

 

I have a minor son from my first marriage and we want to bring him here. My son came for the wedding on B-2 which was issued only for one year and expires this month. He went back home after that. My lawyer advised us not to file AOS for him because he entered the country on B-2 and we decided to play it safe. 

 

Now, we are preparing I-130 for him. Do we need to file any other forms together with the I-130? 
 

Besides my husband’s proof of US citizenship, my son’s birth certificate, my marriage certificate and my divorce decree do we need any other evidence? 
 

There is a question on the I-130 has the petitioner filed any other I-130 and was the outcome- he has only filed one for me but we are still waiting. Do we write outcome pending?

The next question is whether there are other I-130 filed simultaneously - we filed the one for me 6 months ago so I guess that doesn’t apply to us, right?

 

Is there any way to bring my son here while waiting for a decision on the I-130? I read something about K-4 but isn’t that only for children of K-3? I was already here on F-1 student visa when we filed to adjust my status. 
I am 22 weeks pregnant and feeling that my son is getting jealous that we are so excited about the baby, preparing the baby’s nursery and my son is so far away from us. Really want to bring him here as soon as possible. Do you think K-4 will work? 
 

Thank you! 

[HRQX 4,145]

21 minutes ago, Riley and SP said:

My lawyer advised us not to file AOS for him because he entered the country on B-2 and we decided to play it safe.

It's now too late, but I disagree with the lawyer's advise. Intent is determined at entry for IR cases, not at the adjustment interview. See the BIA precedent rulings in Matter of Battista and Matter of Cavazos.

21 minutes ago, Riley and SP said:

Is there any way to bring my son here while waiting for a decision on the I-130?

Not currently. It's essentially up to Congress, but Biden has mentioned supporting a temporary status for those waiting for permanent status: https://joebiden.com/immigration/ "As president, Biden will support family-based immigration by preserving family unification as a foundation of our immigration system; by allowing any approved applicant to receive a temporary non-immigrant visa until the permanent visa is processed"

Edited January 31, 2021 by HRQX

[Boiler 45,467]

There is talk about a come and wait visa but nothing now.

 

The main question is the fathers approval, is the father looking after the child currently?

 

You received bad legal advice but that is passed.

[Riley and SP 17]

11 minutes ago, Boiler said:

There is talk about a come and wait visa but nothing now.

 

The main question is the fathers approval, is the father looking after the child currently?

 

You received bad legal advice but that is passed.

No, it’s my mom who is currently taking care of my son and my husband and I are taking care of them financially. My son’s father said he will give his approval so hopefully he won’t change his mind. 
 

What about K-4 visa? 

[HRQX 4,145]

4 minutes ago, Riley and SP said:

What about K-4 visa? 

He's not eligible. K-4 is specifically "Child of K-3." You don't have K-3 status.

 

Also K-4 is a very rare visa: https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2020AnnualReport/FY20AnnualReport-TableXVB.pdf Page 2

[Riley and SP 17]

11 minutes ago, HRQX said:

He's not eligible. K-4 is specifically "Child of K-3." You don't have K-3 status.

 

Also K-4 is a very rare visa: https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2020AnnualReport/FY20AnnualReport-TableXVB.pdf Page 2

Thanks. Grr that really sucks. Do you know what is the processing time for I-130? And after that how long will my son need to wait to attend a GC interview. He is in Bulgaria. 

[aaron2020 11,651]

Your lawyer gave you really bad advice.  Your son could have stayed and adjusted status.  Once your son was admitted into the US, immigrant intent would not have prevented an Immediate Relative of a US citizen petitioner from adjusting status.

 

Your son can not come on a K-4.

Your USC spouse should file the I-130.  It will take 12-18 months for your son to get an immigrant visa.  Sorry, but there isn't a faster way.  

 

 

[HRQX 4,145]

4 hours ago, Riley and SP said:

My son came for the wedding on B-2 which was issued only for one year and expires this month.

Although not advisable since he recently visited the US, do note that he could attempt to visit with the valid visa up until the visa expiration date. If granted entry, the I-94 would dictate how long he could visit for. https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visa-expiration-date.html "the visa expiration date shown on your visa does not reflect how long you are authorized to stay within the United States. Entry and the length of authorized stay within the United States are determined by the Customs and Border Protection (CBP) Officer at the port-of-entry each time you travel."

[Riley and SP 17]

7 hours ago, HRQX said:

Although not advisable since he recently visited the US, do note that he could attempt to visit with the valid visa up until the visa expiration date. If granted entry, the I-94 would dictate how long he could visit for. https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visa-expiration-date.html "the visa expiration date shown on your visa does not reflect how long you are authorized to stay within the United States. Entry and the length of authorized stay within the United States are determined by the Customs and Border Protection (CBP) Officer at the port-of-entry each time you travel."

Thank you. I thought about that. He visited exactly a year ago - our wedding was last year in February. Just looked at his visa and it has expired two days ago though - January 29. We were thinking for him to visit for Christmas but got scared because of Covid. 

 

I was wondering whether he can apply for a new tourist visa? But I guess the risk to get denied is pretty high now when I have applied for AOS? It’s not to stay here but at least to be able to visit us while the whole process is pending. I can’t travel now with the pregnancy and it’s really tough.

 

I am thinking of sending the I-130 for him tomorrow but from what I am reading it will take 12-18 months before he is able to come here. 

[Boiler 45,467]

I do not believe any Consulate is undertaking B visa interviews.

[Riley and SP 17]

30 minutes ago, Boiler said:

I do not believe any Consulate is undertaking B visa interviews.

Oh, yeah - Covid. I didn’t think about that. 

[Riley and SP 17]

I have a question about the I-130. Hope someone is able to help me. I couldn’t find a lot of information about that. I guess not many people file separately.

 

Do we need to file any other forms together with the I-130? 
 

Besides my husband’s proof of US citizenship, my son’s birth certificate, my marriage certificate and my divorce decree do we need any other evidence? 
 

There is a question on the I-130 has the petitioner filed any other I-130 and was the outcome- he has only filed one for me but we are still waiting. Do we write outcome pending?

The next question is whether there are other I-130 filed simultaneously - we filed the one for me 6 months ago so I guess that doesn’t apply to us, right?

 

Thank you! 

[SalishSea 17,818]

12 hours ago, aaron2020 said:

Your lawyer gave you really bad advice.  Your son could have stayed and adjusted status.  Once your son was admitted into the US, immigrant intent would not have prevented an Immediate Relative of a US citizen petitioner from adjusting status.

 

Your son can not come on a K-4.

Your USC spouse should file the I-130.  It will take 12-18 months for your son to get an immigrant visa.  Sorry, but there isn't a faster way.  

 

 

Except that it sounds like there was immigrant intent all along, so adjusting from a B would have been fraudulent.....

[SalishSea 17,818]

51 minutes ago, Riley and SP said:

Thank you. I thought about that. He visited exactly a year ago - our wedding was last year in February. Just looked at his visa and it has expired two days ago though - January 29. We were thinking for him to visit for Christmas but got scared because of Covid. 

 

I was wondering whether he can apply for a new tourist visa? But I guess the risk to get denied is pretty high now when I have applied for AOS? It’s not to stay here but at least to be able to visit us while the whole process is pending. I can’t travel now with the pregnancy and it’s really tough.

 

I am thinking of sending the I-130 for him tomorrow but from what I am reading it will take 12-18 months before he is able to come here. 

No.  He has immigrant intent.  He cannot obtain a B visa in order to come here and adjust status.  That is fraud.

[Boiler 45,467]

Seems the B would be to visit but not happening anytime soon.