File, not to file i-130 or don't meet requirement for immigration visa for stepdaugher?

[BobStrikesBack 0]

Hi, I hope. Ya'll are doing good. I am giving a hand to a friend to file out a i-130 for a marriage/CR-1 visa. I've got a little confused on whether someone in the family can be included or qualify for immigration visa. My friend is the foreign national married to a US citizen, she has a daughter who is 20 years old, unmarried and is step-daughter of the US Citizen. I can be completely wrong, my understanding is the step-daughter can qualify and be included in the original petition but need a separated i-130. But reading the instructions it says 

Quote

 

Who May Not File Form I-130?

You may NOT file Form I-130 for a person in the following categories:

• 3. A stepparent or stepchild, if the marriage that created the relationship took place after the child turned 18 years of age;

 

The marriage between my friend and US citizen definitely took place after her daughter was over 18 years. So is what I am thinking, she does not qualify? or maybe she qualify for an immigration visa but they should not file i-130 for step-daughter? 

 

Thank you in advance for helping me clarify this out.

 

[SalishSea 18,024]

16 minutes ago, BobStrikesBack said:

Hi, I hope. Ya'll are doing good. I am giving a hand to a friend to file out a i-130 for a marriage/CR-1 visa. I've got a little confused on whether someone in the family can be included or qualify for immigration visa. My friend is the foreign national married to a US citizen, she has a daughter who is 20 years old, unmarried and is step-daughter of the US Citizen. I can be completely wrong, my understanding is the step-daughter can qualify and be included in the original petition but need a separated i-130. But reading the instructions it says 

The marriage between my friend and US citizen definitely took place after her daughter was over 18 years. So is what I am thinking, she does not qualify? or maybe she qualify for an immigration visa but they should not file i-130 for step-daughter? 

 

Thank you in advance for helping me clarify this out.

 

Right, she doesn't qualify to be petitioned as a stepchild due to her age at the time that relationship was created.

 

Once the mother is an LPR she can petition her child, as long as the daughter remains unmarried, in the family preference category.

Edited August 15, 2021 by Jorgedig

[HRQX 4,145]

23 minutes ago, BobStrikesBack said:

The marriage between my friend and US citizen definitely took place after her daughter was over 18 years. So is what I am thinking, she does not qualify?

She does not meet the INA 101(b)(1) definition of child of US citizen:

Quote

The term "child" means an unmarried person under twenty-one years of age who is-

(A) a child born in wedlock;

(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

(D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;

(E)(i) a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or

(ii) subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years;

(F)(i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen who is at least 25 years of age, at least 1 of whom personally saw and observed the child before or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence; Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or

(ii) subject to the same provisos as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph (E)(i); (II) has been adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child is under the age of 18 at the time a petition is filed in his or her behalf to accord a classification as an immediate relative under section 1151(b) of this title; or

(G)(i) a child, younger than 16 years of age at the time a petition is filed on the child's behalf to accord a classification as an immediate relative under section 1151(b) of this title, who has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done at The Hague on May 29, 1993, or who is emigrating from such a foreign state to be adopted in the United States by a United States citizen and spouse jointly or by an unmarried United States citizen who is at least 25 years of age, Provided, That-

(I) the Secretary of Homeland Security is satisfied that proper care will be furnished the child if admitted to the United States;

(II) the child's natural parents (or parent, in the case of a child who has one sole or surviving parent because of the death or disappearance of, abandonment or desertion by, the other parent), or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship with the child, and to the child's emigration and adoption;

(III) in the case of a child having two living natural parents, the natural parents are incapable of providing proper care for the child;

(IV) the Secretary of Homeland Security is satisfied that the purpose of the adoption is to form a bona fide parent-child relationship, and the parent-child relationship of the child and the natural parents has been terminated (and in carrying out both obligations under this subclause the Secretary of Homeland Security may consider whether there is a petition pending to confer immigrant status on one or both of such natural parents); and

(V) in the case of a child who has not been adopted-

(aa) the competent authority of the foreign state has approved the child's emigration to the United States for the purpose of adoption by the prospective adoptive parent or parents; and

(bb) the prospective adoptive parent or parents has or have complied with any pre-adoption requirements of the child's proposed residence; and

(ii) except that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or

(iii) subject to the same provisos as in clauses (i) and (ii), a child who-

(I) is a natural sibling of a child described in clause (i), subparagraph (E)(i), or subparagraph (F)(i);

(II) was adopted abroad, or is coming to the United States for adoption, by the adoptive parent (or prospective adoptive parent) or parents of the sibling described in clause (i), subparagraph (E)(i), or subparagraph (F)(i); and

(III) is otherwise described in clause (i), except that the child is younger than 18 years of age at the time a petition is filed on his or her behalf for classification as an immediate relative under section 1151(b) of this title.

 

23 minutes ago, BobStrikesBack said:

My friend is the foreign national

After the foreign national enters the US with CR-1 visa then the foreign national can file Form I-130 for the daughter. How close is she to turning 21?

Edited August 15, 2021 by HRQX

[BobStrikesBack 0]

9 minutes ago, Jorgedig said:

Right, she doesn't qualify to be petitioned as a stepchild due to her age at the time that relationship was created.

 

Once the mother is an LPR she can petition her child, as long as the daughter remains unmarried, in the family preference category.

 

6 minutes ago, HRQX said:

She does not meet the INA 101(b)(1) definition of child of US citizen:

 

After the foreign national enters the US with CR-1 visa then the foreign national can file Form I-130 for the child. How close is the child to turning 21?

Thank you much both of you for the quick response and for clarifying!! 

 

I think she recently turned 20, so we're looking at less than a year before 21. They haven't filed for CR1/i-130 yet. So when the step-daughter turns 21 and my friend as LPR will likely put the step-daughter into a category that will take years to get an immigration visa, correct? 

[SalishSea 18,024]

1 minute ago, BobStrikesBack said:

 

Thank you much both of you for the quick response and for clarifying!! 

 

I think she recently turned 20, so we're looking at less than a year before 21. They haven't filed for CR1/i-130 yet. So when the step-daughter turns 21 and my friend as LPR will likely put the step-daughter into a category that will take years to get an immigration visa, correct? 

Since they haven't even filed, it may take years just for the mother to get a visa, let alone the daughter.   Immigration is not a fast or easy process.

[BobStrikesBack 0]

Just now, Jorgedig said:

Since they haven't even filed, it may take years just for the mother to get a visa, let alone the daughter.   Immigration is not a fast or easy process.

No doubt. Thank you!

[HRQX 4,145]

20 minutes ago, BobStrikesBack said:

So when the step-daughter turns 21 and my friend as LPR will likely put the step-daughter into a category that will take years to get an immigration visa, correct? 

Correct. F2B category; unmarried sons and daughters (21 years of age and older) of lawful permanent residents.

 

As Jorgedig mentioned above, she'll have to remain unmarried until after she enters the US with the F2B visa.

[Chancy 6,243]

*** Moved from IR1/CR1 Process & Procedures to Bringing Family of LPR forum -- topic is about a stepchild who does not qualify as immediate relative of USC ***

 

[SusieQQQ 11,587]

18 hours ago, BobStrikesBack said:

 

I think she recently turned 20, so we're looking at less than a year before 21. They haven't filed for CR1/i-130 yet. So when the step-daughter turns 21 and my friend as LPR will likely put the step-daughter into a category that will take years to get an immigration visa, correct? 

It has been taking 6-7 years for F2B (unmarried over 21 son or daughter of LPR) to get a visa.