I-130 issues for spouse & child immigrating

[AMAXX 2]

I am a Christian and got married in the Philippines, because I did not believe in shacking up. I notice that USCIS encourages I-130 process for all married in the Philippines,  and a  fiancée requesting their fiancé to immigrate. 

 

My problem is, I used the new online system, and spoke to a tier 1 person to clarify I only needed 1 I-130 application.

I submitted 1 added the child, added the I-130a and added the child. 14 months later we were approved, but found out The child was not represented.  NVC said i must submit an I-130 for the child, which goes against the rules, but I did it anyway.  Now we wait...

 

What rights do I have to insure they both can (must) travel together? 

[aaron2020 11,651]

You are mistaken.  The rules (law) requires you to file separate I-130 for a spouse and stepchild.  There is no way for you to "add the child" to your spouse's case.  

The USCIS information line is notorious for giving wrong information.  Ultimately, you are responsible for knowing how to file correctly.

You have no rights that two separate cases be processed in a way that ensures both beneficiaries travel together.   You will have to slow down your wife's case in order for your stepchild's case to work through the system if you want their cases to be processed around the same time at the US Embassy so they can travel together.

Edited April 1, 2021 by aaron2020

[Hank_ 9,174]

You are a USC then you need a separate I-130 for each person petitioned.    Only exception is -  if an LPR (Green card holder) files an I-130 can a child be added as a derivative.

 

You can slow down the processing of your wife's petition at NVC  so that the child's I-130 can catch up.

 

 

Edited April 1, 2021 by Hank_

[AMAXX 2]

Thank you Aaron & Hank. The I-130 instruction page says one filing also if a child is a derivative.

I will be slowing down my wife's NVC pace as well. That is all I can do. The manual needs work but I am at their whim. Thank you again.

 

 

Regards

 

[jskibo 588]

8 minutes ago, AMAXX said:

Thank you Aaron & Hank. The I-130 instruction page says one filing also if a child is a derivative.

I will be slowing down my wife's NVC pace as well. That is all I can do. The manual needs work but I am at their whim. Thank you again.

 

 

Regards

 

Except there is no derivatives on a CR1 / IR1 case

[Lil bear 4,361]

3 hours ago, AMAXX said:

Thank you Aaron & Hank. The I-130 instruction page says one filing also if a child is a derivative.

I will be slowing down my wife's NVC pace as well. That is all I can do. The manual needs work but I am at their whim. Thank you again.

 

 

Regards

 

The I 130 is used to petition for many categories if immigrants .. some categories allow derivatives and some do not. It’s all in the fine print of the instruction pdf on the form website. Unfortunately the onus is in the petitioner /applicant to work through this. I hope you are able to get the child’s process in a timely manner 

[aaron2020 11,651]

4 hours ago, AMAXX said:

Thank you Aaron & Hank. The I-130 instruction page says one filing also if a child is a derivative.

I will be slowing down my wife's NVC pace as well. That is all I can do. The manual needs work but I am at their whim. Thank you again.

 

 

Regards

 

 

The I-130 instructions does not say that.  This is a failure on your part.

Top of page 1 of the I-130 instructions: 

 

"If you are a U.S. citizen, you must file a separate Form I-130 for each eligible relative. You may file Form I-130 for: A. Your spouse; B. Your unmarried children under 21 years of age;"

Edited April 1, 2021 by aaron2020

[AMAXX 2]

17 hours ago, jskibo said:

Except there is no derivatives on a CR1 / IR1 case

What Is the Purpose of Form I-130?
A citizen or lawful permanent resident of the United States may file Form I-130, Petition for Alien Relative, with U.S. 
Citizenship and Immigration Services (USCIS) to establish the existence of a relationship to certain alien relatives who 
wish to immigrate to the United States.
 Who May File Form I-130?
1. If you are a U.S. citizen, you must file a separate Form I-130 for each eligible relative. You may file Form I-130 for:
A. Your spouse;
B. Your unmarried children under 21 years of age;
C. Your unmarried sons or daughters 21 years of age or older;
D. Your married sons or daughters of any age;
E. Your brothers or sisters (you must be 21 years of age or older); and
F. Your mother or father (you must be 21 years of age or older).
2. If you are a lawful permanent resident of the United States, you must file a separate Form I-130 for each eligible 
relative. You may file Form I-130 for:
A. Your spouse;
B. Your unmarried child under 21 years of age; and
C. Your unmarried son or daughter 21 years of age or older.
NOTE:
1. If you are filing for your spouse, he or she must complete and sign Form I-130A, Supplemental Information for 
Spouse Beneficiary. If your spouse is overseas, Form I-130A must still be completed, but your spouse does not have 
to sign Form I-130A. Form I-130A must be submitted with Form I-130. 
2. There is no visa category for married children of lawful permanent residents. If you are a lawful permanent resident 
and you filed Form I-130 for your unmarried son or daughter, but your son or daughter marries before immigrating to 
the United States or adjusting status to lawful permanent resident, we will deny or automatically revoke your petition.
3. Non-citizen U.S. nationals (as defined in the Immigration and Nationality Act (INA) section 308) have the same rights 
as lawful permanent residents to petition for family members. If you are a U.S. national born in American Samoa or 
Swains Island (or who otherwise qualifies as a non-citizen U.S. national, as described in INA section 308), you should 
indicate in Part 2., Item Number 36. of the petition that you are a lawful permanent resident. You do not need to list 
an Alien Registration Number (A-Number) in Part 2., Item Number 1. of the petition.
4. If the beneficiary qualifies under Items 1.C., 1.D., or 1.E. above,

 

you are not required to file separate petitions for the 
beneficiary’s spouse or unmarried children under 21 years of age. They are considered derivative beneficiaries and 
you should list them in Part 4. of this petition.

If you are the lawful permanent resident petitioner and the beneficiary qualifies under Items 2.A., 2.B., or 2.C. above, 
you are not required to file separate petitions for the beneficiary’s unmarried children under 21 years of age. They are 
considered derivative beneficiaries and you should list them in Part 4. of this petition.
6. The derivative beneficiaries described in Items 4. and 5. above may apply for an immigrant visa along with the 
beneficiary

 

The only eligible relative is the spouse...

When filling or answering the online questions it says to add her daughter, we did and did on 130a as well.

I am a step parent to the 19 yr old when married, so item 3 below technically would prohibit me filing for my stepdaughter...

 

The rules also say...

 

.
Who May Not File Form I-130?
You may NOT file Form I-130 for a person in the following categories:
1. An adoptive parent or adopted child, if the adoption took place after the child turned 16 years of age, or if the child 
has not been in the legal custody and has not lived with the parents for at least 2 years before filing the petition;
2. A natural parent, if you gained lawful permanent resident status or U.S. citizenship through adoption or as a special 
immigrant juvenile;
3. A stepparent or stepchild, if the marriage that created the relationship took place after the child turned 18 years of age;
4. A spouse, if you and your spouse were not both physically present at the marriage ceremony, unless the marriage was 
consummated;
5. A spouse, if you gained lawful permanent resident status through a prior marriage to a U.S. citizen or lawful 
permanent resident, unless:
A. You are now a naturalized U.S. citizen;
B. You have been a lawful permanent resident for at least five years;
C. You can establish by clear and convincing evidence that you did not enter the prior marriage (through which you 
gained your lawful permanent resident status) in order to evade any U.S. immigration law; or
D. Your prior marriage through which you gained your immigrant status was terminated by the death of your former 
spouse;
6. A spouse, if you married your spouse while he or she was the subject of an exclusion, deportation, removal, or 
rescission proceeding regarding his or her right to be admitted into or to remain in the United States, or while a 
decision in any of these proceedings was before any court on judicial review. However, you may be eligible for the 
bona fide marriage exemption under INA section 245(e)(3) if:
A. You request in writing a bona fide marriage exemption and prove by clear and convincing evidence that the 
marriage is legally valid where it took place and that you and your spouse married in good faith and not for the 
purpose of obtaining lawful permanent resident status for your spouse and that no fee or any other consideration 
(other than appropriate attorney fees) was given to you for your filing of this petition. The request must be 
submitted with Form I-130; or
B. Your spouse has lived outside the United States, after the marriage, for a period of at least two years;
7. Any person, if USCIS determines that he or she entered into or attempted or conspired to enter into a marriage in 
order to evade U.S. immigration laws; and
8. A grandparent, grandchild, nephew, niece, uncle, aunt, cousin, or parent-in-law.

[aaron2020 11,651]

You’re still wrong.

 

Everyone else is right.  Derivative beneficiaries are not allowed in CR-1/IR-1 cases when a US citizen petitions for a spouse.  
 

Since your stepdaughter was 19 years old when you married her mom, the I-130 will be deny.  You should have gone for a K-1 and K-2 if you wanted to bring her daughter to the US.

Edited April 2, 2021 by aaron2020

[Chancy 6,243]

On 4/2/2021 at 12:01 PM, AMAXX said:

I am a step parent to the 19 yr old when married

 

You did not mention this critical fact in your original post, so everyone assumed that your wife's child was below 18 years old.  Unfortunately, you chose the wrong visa type if you wanted the child to immigrate with her mother.  You should not have married the mother yet, so she could be eligible for a K1 fiancee visa and her daughter could be eligible for a K2 visa.  Too late now.

 

Now that we know the child's age when you got married, it is clear that you cannot petition for your step-child.  She also cannot be a derivative beneficiary of her mother's case.

 

You may have misinterpreted the section of the I-130 form instructions that states which cases are allowed to have derivatives.  For petitions filed by US citizens, the relevant section is item 4 under Notes for "Who May File Form I-130?" -- "If the beneficiary qualifies under Items 1.C., 1.D., or 1.E. above, you are not required to file separate petitions for the beneficiary’s spouse or unmarried children under 21 years of age. They are considered derivative beneficiaries and you should list them in Part 4. of this petition."

 

Your wife does not qualify under Items 1.C., 1.D., or 1.E. which are:

1.C. Your unmarried sons or daughters 21 years of age or older;

1.D. Your married sons or daughters of any age;

1.E. Your brothers or sisters

 

As such, your wife (and all other spouses of US citizens) is not allowed to have derivative beneficiaries under her CR1/IR1 case.

 

There is no route for your wife and step-child to immigrate at the same time.  Your wife must immigrate first, so she can become a lawful permanent resident and be eligible to petition for her unmarried child.

 

[Boiler 46,316]

She can fie for her daughter as soon as she enters with her Visa and becomes a Permanent resident, well assuming her daughter is not married and remains so whilst her Mother is a LPR.

 

Current processing times are around 10 years.

 

 

[AMAXX 2]

11 hours ago, Boiler said:

She can fie for her daughter as soon as she enters with her Visa and becomes a Permanent resident, well assuming her daughter is not married and remains so whilst her Mother is a LPR.

 

Current processing times are around 10 years.

 

 

Thank you Boiler. That is what I understand also. There is no way I would condone nor they can be separated. 

 

This is not a good situation.  This is a fault in the manual rules that needs addressing.

 

Thank you again Boiler.

 

Happy Resurrection Day. 

 

 

 

[aaron2020 11,651]

28 minutes ago, AMAXX said:

Thank you Boiler. That is what I understand also. There is no way I would condone nor they can be separated. 

 

This is not a good situation.  This is a fault in the manual rules that needs addressing.

 

Thank you again Boiler.

 

Happy Resurrection Day. 

 

 

 

This is not a fault of the manual rules.  This is your fault for not checking the rules.

 

This is hubris.  

As a good Christian, you should take responsibility for your failures instead of blaming others.  Many people situated similarly to you have sought help instead of acting on their own in order to avoid your predicament.  

Edited April 5, 2021 by aaron2020

[AMAXX 2]

3 hours ago, aaron2020 said:

This is not a fault of the manual rules.  This is your fault for not checking the rules.

 

This is hubris.  

As a good Christian, you should take responsibility for your failures instead of blaming others.  Many people situated similarly to you have sought help instead of acting on their own in order to avoid your predicament.  

You must not be a Christian for compassion escapes you.

 

[aaron2020 11,651]

8 hours ago, AMAXX said:

You must not be a Christian for compassion escapes you.

 

Yes, always someone else's fault.  Not yours for failing to understand the rules.  Easier to blame others than take responsibility.