Husband's Parents Filing for Unmarried Sons - Confusion!

[brooke123 2]

Hi there! I'm hoping this question makes sense as it's a little complicated to explain!

 

My husband has recently filed an I-130 for both of his parents. He has two older half-brothers, one from each parent from their previous relationships prior to their own marriage. Looking into the future, his parents would be thinking of filing for both sons separately either as permanent residents or citizens when the time comes. 

 

His Mom has an older son in Honduras who is around 30, never married, with one daughter (and is still currently in a relationship with the mother of the daughter). 

 

Additionally, his Father has an older son in the United States around the same age who has never married. However, this son entered the US illegally and remains presently.

 

My questions are the following:

 

-For his older half-brother in Honduras (Mom's son), is it best for his Mom to file immediately as a permanent resident? Or wait to become a citizen? If she hits the five-year mark and is eligible for citizenship, would she need to wait to file for citizenship until her son's visa is processed? Lastly, would this son's daughter be eligible as a derivative?

 

-For his older half-brother in the United States, would he be eligible as he is currently present in the US illegally? If so, what kind of ban would he be facing and is there a waiver for it that is likely to be accepted?

 

My apologies for the lengthy post, I would appreciate any feedback at all! 

[Boiler 45,516]

Honduras one is just a question of waiting assume he stays single 7 years? before his priority date becomes current. OK with leaving Childs mother? Is the intent for the child to come?

 

The one in the US I presume has a 10 year bar, needs to check if a I601A could be applicable. Otherwise would need to file a I 601 after being refused a visa at the Consulate interview.

[aaron2020 11,651]

1 hour ago, brooke123 said:

Hi there! I'm hoping this question makes sense as it's a little complicated to explain!

 

My husband has recently filed an I-130 for both of his parents. He has two older half-brothers, one from each parent from their previous relationships prior to their own marriage. Looking into the future, his parents would be thinking of filing for both sons separately either as permanent residents or citizens when the time comes. 

 

His Mom has an older son in Honduras who is around 30, never married, with one daughter (and is still currently in a relationship with the mother of the daughter). 

 

Additionally, his Father has an older son in the United States around the same age who has never married. However, this son entered the US illegally and remains presently.

 

My questions are the following:

 

-For his older half-brother in Honduras (Mom's son), is it best for his Mom to file immediately as a permanent resident? Best for LPR mom to file for her unmarried son.  It would be an F2b case and it takes about 7 years for a visa.  He has to stay unmarried until he gets his green card.  Or wait to become a citizen?  No reason to wait.  As an LPR, she can file for an unmarried son.  If she hits the five-year mark and is eligible for citizenship, would she need to wait to file for citizenship until her son's visa is processed? No. Lastly, would this son's daughter be eligible as a derivative?  Yes if she is unmarried, is under age 21 at the time a visa becomes available, and has mom's permission to immigrate.

 

-For his older half-brother in the United States, would he be eligible as he is currently present in the US illegally? Maybe.  LPR father can file in the F2b category for an unmarried son.  After about 7 years, he would be eligible for visa.  However, illegally entry means he can not adjust status.  He would need to interview outside the US for an immigrant visa.  His illegal presence would create a 10 years ban unless he can get an I-601a waiver.  If so, what kind of ban would he be facing and is there a waiver for it that is likely to be accepted?  An I-601a waiver for unlawful presence may be possible if they can show an extreme hardship to the father if the son is not granted an immigrant visa.  A extremely high bar.  

 

My apologies for the lengthy post, I would appreciate any feedback at all! 

 

[brooke123 2]

44 minutes ago, Boiler said:

Honduras one is just a question of waiting assume he stays single 7 years? before his priority date becomes current. OK with leaving Childs mother? Is the intent for the child to come?

 

The one in the US I presume has a 10 year bar, needs to check if a I601A could be applicable. Otherwise would need to file a I 601 after being refused a visa at the Consulate interview.

Thanks for your response, Boiler!

 

I believe he would stay single as marriage just doesn’t seem so important to them. The intent would be for the child to come as she is incredibly bright and dreams of attending university in the US (at only 7 years old!). I think he would be ok with leaving the mother to enable that. 
 

I appreciate your input on the other brother, it seems that Aaron has reflected your thoughts. 

[SusieQQQ 11,586]

2 minutes ago, brooke123 said:

Thanks for your response, Boiler!

 

I believe he would stay single as marriage just doesn’t seem so important to them. The intent would be for the child to come as she is incredibly bright and dreams of attending university in the US (at only 7 years old!). I think he would be ok with leaving the mother to enable that. 
 

 

He would also have the alternative, after he has his own green card, to marry her and then sponsor a spouse visa rather than just leaving her behind. He only has to remain unmarried until he gets a green card. He might be ok leaving her, daughter might want her mom around too.

 

 

Edited March 10, 2021 by SusieQQQ

[brooke123 2]

11 minutes ago, aaron2020 said:

 

Aaron, thank you SO much for this response. Incredibly helpful.

 

A question for you - For the brother in the US, would the waiver become any more likely to be accepted if he has a US citizen daughter who is about 5 years old? I forgot to mention that. He is her main source of monetary support, so could he also demonstrate that it would pose an extreme hardship for her as well not have her father present in the US? Or would the hardship only apply to his father (the petitioner) who would be applying for him? 

[brooke123 2]

5 minutes ago, SusieQQQ said:

He would also have the alternative, after he has his own green card, to marry her and then sponsor a spouse visa rather than just leaving her behind. He only has to remain unmarried until he gets a green card. He might be ok leaving her, daughter might want her mom around too.

 

 

Thank you for this, SusieQQQ! This was actually going to be my next question, but didn’t want to pack too many into one!

 

I had thought about this exact situation being a possibility, but wanted to make sure it was permissible and not interpreted as fraud in any sort of way since he is partnered with the mother but not married by law. 

Edited March 10, 2021 by brooke123

[SusieQQQ 11,586]

2 minutes ago, brooke123 said:

Thank you for this, SusieQQQ! This was actually going to be my next question, but didn’t want to pack too many into one!

 

I had thought about this exact situation being a possibility, but wanted to make sure it was permissible and not interpreted as fraud in any sort of way since he is partnered with the mother but not married by law. 

It’s a pretty common situation for F2B visas. They are ok with letter of the law on this one.

[Boiler 45,516]

7 minutes ago, brooke123 said:

Aaron, thank you SO much for this response. Incredibly helpful.

 

A question for you - For the brother in the US, would the waiver become any more likely to be accepted if he has a US citizen daughter who is about 5 years old? I forgot to mention that. He is her main source of monetary support, so could he also demonstrate that it would pose an extreme hardship for her as well not have her father present in the US? Or would the hardship only apply to his father (the petitioner) who would be applying for him? 

The daughter can not be the qualifying relative but her hardships could be included.

[brooke123 2]

5 minutes ago, Boiler said:

The daughter can not be the qualifying relative but her hardships could be included.

Understood! Thank you again for the help, Boiler!

[aaron2020 11,651]

9 hours ago, brooke123 said:

Aaron, thank you SO much for this response. Incredibly helpful.

 

A question for you - For the brother in the US, would the waiver become any more likely to be accepted if he has a US citizen daughter who is about 5 years old? I forgot to mention that. He is her main source of monetary support, so could he also demonstrate that it would pose an extreme hardship for her as well not have her father present in the US? Or would the hardship only apply to his father (the petitioner) who would be applying for him? 

For the unlawful presence waiver, I-601a, only a spouse or parent can be a qualifying relative.  A child can not be a qualifying relative.  The child's hardship can be included. 

[Demise 1,283]

16 hours ago, brooke123 said:

Hi there! I'm hoping this question makes sense as it's a little complicated to explain!

 

My husband has recently filed an I-130 for both of his parents. He has two older half-brothers, one from each parent from their previous relationships prior to their own marriage. Looking into the future, his parents would be thinking of filing for both sons separately either as permanent residents or citizens when the time comes. 

 

His Mom has an older son in Honduras who is around 30, never married, with one daughter (and is still currently in a relationship with the mother of the daughter). 

 

Additionally, his Father has an older son in the United States around the same age who has never married. However, this son entered the US illegally and remains presently.

 

My questions are the following:

 

-For his older half-brother in Honduras (Mom's son), is it best for his Mom to file immediately as a permanent resident? Or wait to become a citizen? If she hits the five-year mark and is eligible for citizenship, would she need to wait to file for citizenship until her son's visa is processed? Lastly, would this son's daughter be eligible as a derivative?

 

-For his older half-brother in the United States, would he be eligible as he is currently present in the US illegally? If so, what kind of ban would he be facing and is there a waiver for it that is likely to be accepted?

 

My apologies for the lengthy post, I would appreciate any feedback at all! 

1. File as soon as she's an LPR. If she naturalizes he'll be upgraded from F2B to F1 and keep the old priority date. There's no point in waiting 5 years here. In either case (F1 or F2B) the daughter can tag along as a derivative.

 

2. Yes, but he will require an I-601A waiver. The way that it works is that you cannot adjust after an EWI or overstay, so he'll have to do consular processing once the priority date is current, BUT leaving would trigger a 10 year ban. The waiver is basically so the ban is waived before he even leaves to attend the interview.

[brooke123 2]

5 hours ago, Demise said:

1. File as soon as she's an LPR. If she naturalizes he'll be upgraded from F2B to F1 and keep the old priority date. There's no point in waiting 5 years here. In either case (F1 or F2B) the daughter can tag along as a derivative.

 

2. Yes, but he will require an I-601A waiver. The way that it works is that you cannot adjust after an EWI or overstay, so he'll have to do consular processing once the priority date is current, BUT leaving would trigger a 10 year ban. The waiver is basically so the ban is waived before he even leaves to attend the interview.

Thanks for your input, Demise!

 

To clarify, what you’re saying is that the I-601A waiver is processed prior to the interview once his priority date becomes current? That way he can attend the interview without the ban already in effect? I may be confusing what you said. I had thought he would be denied at the interview and then would submit the waiver and undergo the processing? 
 

I’m wondering now if it would be beneficial for him to leave earlier, however I don’t know how realistic that would be since he has a daughter to support. As I understand it, he was brought to the US around age 15 with his mother, so he has been in the US for quite some time. 

[aaron2020 11,651]

12 minutes ago, brooke123 said:

Thanks for your input, Demise!

 

To clarify, what you’re saying is that the I-601A waiver is processed prior to the interview once his priority date becomes current? That way he can attend the interview without the ban already in effect? I may be confusing what you said. I had thought he would be denied at the interview and then would submit the waiver and undergo the processing? 
 

I’m wondering now if it would be beneficial for him to leave earlier, however I don’t know how realistic that would be since he has a daughter to support. As I understand it, he was brought to the US around age 15 with his mother, so he has been in the US for quite some time. 

The I-601a waiver must be approved before he leaves the US for his interview.  If he leaves the US before getting the waiver, he will get a 10 years ban.

Look to see if he qualifies for DACA.

Edited March 11, 2021 by aaron2020

[HRQX 4,145]

15 minutes ago, aaron2020 said:

The I-601a waiver must be approved before he leaves the US for his interview.

The I-601A can still be approved after the applicant departs the US. The requirement is to be physically present in the US to file the application and to go to the biometrics appointment. https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers

32 minutes ago, brooke123 said:

once his priority date becomes current?

Note that one of the requirements is to:

Be in the process of obtaining your immigrant visa  and have an immigrant visa case pending with Department of State (DOS) because you:

• Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;
• Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee);
• Are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS; or
• Are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)