Do I file I-130 or I-824 after becoming a Permanent Resident after K-1 Visa?

[jonpinoy 1]

Hello all,

 

I am currently married to my wife who came from South Korea through a K-1 visa. She has since attained permanent residency and has a green card. She is currently in the process of trying to be naturalized here in the US (which I know will take some time). She has a son in South Korea (from a previous marriage) that we would like to bring over to the US to live with us.

 

I was looking through the immigration guidelines and I understand that I have to file I-130 to bring him over, but I was looking also at the Follow-To-Join Benefits section and it says: 
 

Quote

Your spouse and/or children may be eligible for following-to-join benefits if: 

• The relationship existed at the time you became a permanent resident and still exists, AND 
• You received an immigrant visa or adjusted status in a preference category. 

My wife and I obviously still are married so the first part applies, but I am confused about the second part.  If my wife came to the US through a K-1 visa and has since attained her green card (permanent resident status) here, do I have to go through the process of filing the I-130 or can I just file Form I-824 for the Follow-to-Join benefits? I am not sure if the K-1 visa is in a "preference category" as the second part states.

 

Any help would be appreciated. Thank you!

[arken 4,197]

23 minutes ago, jonpinoy said:

Hello all,

 

I am currently married to my wife who came from South Korea through a K-1 visa. She has since attained permanent residency and has a green card. She is currently in the process of trying to be naturalized here in the US (which I know will take some time). She has a son in South Korea (from a previous marriage) that we would like to bring over to the US to live with us.

 

I was looking through the immigration guidelines and I understand that I have to file I-130 to bring him over, but I was looking also at the Follow-To-Join Benefits section and it says: 
 

My wife and I obviously still are married so the first part applies, but I am confused about the second part.  If my wife came to the US through a K-1 visa and has since attained her green card (permanent resident status) here, do I have to go through the process of filing the I-130 or can I just file Form I-824 for the Follow-to-Join benefits? I am not sure if the K-1 visa is in a "preference category" as the second part states.

 

Any help would be appreciated. Thank you!

I130 route. You did not adjust status in a preference category.

[HRQX 4,145]

1 hour ago, jonpinoy said:

She has a son in South Korea (from a previous marriage)

When you married your wife, how old was her son?

[Future Us Citizen 1]

I think it depend on your step son age, and if you was married to mom before his 18th birthday

[jonpinoy 1]

My wife's son was around 15 when we first got married in the States. However, it looks like I have to file I-130 according to @arken. Thanks for the information!

[HRQX 4,145]

13 minutes ago, jonpinoy said:

My wife's son was around 15 when we first got married in the States.

How old is he now? His age at the time of I-130 filing will determine if he's still an "Immediate Relative" (i.e. IR-2 visa) or would instead be F1 category (if he is not married). Form I-130 can be filed online: https://www.uscis.gov/i-130

 

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

CSPA for Immediate Relatives

If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. However, you must remain unmarried in order to qualify.

If the petitioner of a pending or approved immediate relative spousal petition dies, their spouse’s Form I-130 automatically converts to a widow(er)’s Form I-360. The widow(er)’s children, if any, who are under the age of 21 and unmarried at the time of the petitioner’s death can be classified as derivatives on the automatically converted Form I-360 and therefore qualify for the CSPA.

[SusieQQQ 11,586]

Judging from your timeline and the fact you said he was 15 when you got married, there is a slim chance he is still under 21. If so suggest you ensure you file for a stepson IR2 petition before he turns 21 as it will probably make a difference of about 5-6 years as to how soon he can come.