Green card for children

[Gomast 65]

This is a question that I posted a year ago, but I'm following @Villanelle advice and writing everything again with some new updates, because I have a complicated situation and my previous post was very confusing. 

 

I have 2 kids from a previous marriage, ages 12, 14. I don't know what is their immigration status (they're Israelis). I want to help them with their immigration status before they reach an age in which it will be too late. I was previously married, got divorced in Israel, then I entered the US on a K-1 and AOS is still pending.

 

My children live full time with my ex (she's Israeli) and her husband (USC) in Tennessee. She has physical custody. We share joint legal custody. My children spend significant time with me even though my ex and I live in different states. I don't have the cooperation of my ex nor her husband.

 

When I got divorced (divorce in Israeli court and custody order in Nevada court), the family court in Nevada issued a custody order that says: If my ex is unable to obtain green cards for the children in accordance with the prior representations, I will apply and pay for their green cards after my green card application is approved. It also says that we both agree that the kids will permanently live in the US.

So it was my ex's responsibility (or her husband's responsibility) to apply for the children's visa.

As part of the divorce agreement and order, my ex sent me an invoice to pay half of the legal fees for my kids' I-485, which I paid.

 

Since then, for 3 years, I have been asking my ex what is the status of the kids visa, and I haven't received any response. I assumed that it was still pending. I don't have their receipt numbers. Today, I called the USCIS (I said "lost receipt" at the prompt, thank you @ashley_ann) and they told me that they don't have any record of a petition for my children. For months, I have been trying to call and email the law firm that filed the petition, but they haven't been responding (my ex retained them).

 

I don't know what is the immigration status of my kids. @Boiler I don't know why the mother wouldn't want to petition for them.

 

My ex and I moved to the US in December 2009. Between the years 2009-2017 The kids had F-2 visa, then H-4. I had F-1 and H1B. My ex had J-1, H4, then R1.

We returned to Israel in June 2017, and immediately started the divorce in Israel in June 2017.

My ex returned with the kids (without me) to the US in November 2017. @Lil bearShe was still married to me at that time, but I gave my permission for them to return to the US. I assume that she used her R-1, and the kids probably used either my derivative H-4 or their mother's R-2. They must have entered the US legally.

 

My ex remarried on November 2018. I know that she is currently working as a teacher, so I assume that she has EAD, which means that she probably filed her I-485.

 

Here is my timeline:

Divorce in Israel: 9/10/18

US Entry with K-1 :     7/17/19

My marriage:         8/29/19

I-485 filing date:     10/8/2019   

Biometrics:         10/31/2019   

RFE for AOS, requesting a co-sponsor to I-864: 11/4/2019   

Response to RFE:     12/13/2019 

Custody order, Nevada Family court: 5/30/2020.

EAD card issued:     2/25/21

I am still waiting for my AOS to be approved.

 

I did not apply for a k-2 for my kids, but I listed them on my k-1 application:

On form I-129F, I listed them on page 7, part 8, item 40a.

On DS-160, under "Do you have any immediate relatives, not including parents in the U.S.?" I listed my kids. I also listed their names under : "Do you have any children?".

"Is this child taveling to the United States with you?" Answer: No

"Is this child taveling to the United States at a later date to join you?" No

 

On form I-485, I listed them on page 8, part 6, item 7a.

However, for the question: "Is this child applying with you?" I selected "No".

 

@HRQX suggested the following:

• I-130 filled out by your wife and signed by your wife. Very first item must be I-130 fee ($535) payment method.
• I-485 and I-944 can be signed by you: "If you are under 14 years of age, your parent or legal guardian may sign the application on your behalf." I-864 filled out by your wife and signed by your wife. Very first item must be I-485 fee ($1140) payment method.
• I-765 is free but optional. If I-765 is approved before I-485 is adjudicated then child will be eligible for SSN issuance at that time. I-765 can be signed by you.
• I-131 is free but optional. I-131 can be signed by you.

 

@Lil bear is absolutely right that I have been procrastinating this matter for way too long, partly because I was hoping that my ex will follow through with the petition, especially because she told the court that her husband petitioned for the kids. Today I got really worried after hearing from the USCIS that no petition has been filed.

 

I opened a thread about this topic last year but I feel that I wasn't clear enough.

Here is the old post:

 

I have additional questions.

1.  @geowrian mentioned that my USC wife could file I-130 + I-485 packet to petition and adjust status concurrently. Will an overstay be waived automatically or is there a waiver form that she would need to file?

2. USCIS tier 1 told me that my ex's husband did not submit a petition for my kids. If USCIS is wrong and my ex's husband did submit a petition, what happens if my wife submits another petition? Will there be any conflict? Could it be that the kids petition was filed and maybe even approved and USCIS tier 1 wouldn't know about it?

3. If my wife files for my kids, can she do so without us having physical custody?

4. Will the petition for the kids cause my AOS petition to be further delayed? Should I first wait for my petition to be approved?

 

I'm really sorry for the long post and I appreciate the help!

 

[Lil bear 4,188]

Thx for your rewrite. Way too  many complexities for me to think that this  should be done without legal input. A lawyer is needed to deal with the aspect of the divorce settlement issues, get clarification on their status and  enforce  the court order. Depending on the outcome of that, you may be able to get through their immigration / adjustment of status process without a lawyer ..or not 

[Adventine 3,196]

This is indeed very complex and I'm sorry you're going through all this.

 

Some points to consider:

• I-944 is no longer needed. That form is now obsolete.
• I do not think your current USC wife can submit a petition for your kids until you have clarified the status of the petition with your ex-wife/the biological mother.
• Is it possible that your ex-wife took your money but did not file a petition at all?

If I have other points to bring up, I will post again. But this definitely is lawyer territory.

[Gomast 65]

13 minutes ago, Adventine said:

This is indeed very complex and I'm sorry you're going through all this.

 

Some points to consider:

• I-944 is no longer needed. That form is now obsolete.
• I do not think your current USC wife can submit a petition for your kids until you have clarified the status of the petition with your ex-wife/the biological mother.
• Is it possible that your ex-wife took your money but did not file a petition at all?

If I have other points to bring up, I will post again. But this definitely is lawyer territory.

It is possible that she took my money, and maybe that is the reason that she is not answering me regarding their status. She is answering me about visitation and traveling back and forth between Florida and Tennessee. She is only ignoring my questions about their immigration status. I guess that the first step is to have a family law attorney get information about their visa status and in the meantime to hope that my AOS will get resolved… 

How much time do I have until they age out and my wife will no longer be able to apply for them? 

[Adventine 3,196]

Your ex-wife evading all those questions is definitely a big red flag. It may very well be that she herself hasn't completed her own AOS process with her current husband, and is simply not telling you. You may want to consult both a family law and an immigration lawyer.

[HRQX 4,145]

11 minutes ago, Adventine said:

I do not think your current USC wife can submit a petition for your kids until you have clarified the status of the petition with your ex-wife/the biological mother.

OP's wife can submit the I-130 petitions now and should do it ASAP. Each filed petition is treated separately. The children are eligible to adjust if they entered legally since they are the "children" of a US citizen; see INA 101(b)(1):

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.

 

42 minutes ago, Gomast said:

They must have entered the US legally.

Do you at least have a copy of the bio page of their Israeli passports that were used to enter the US? If not can you ask your ex for that info? With that info you can pull up their I-94 records that include nonimmigrant status, date of entry, etc.: https://i94.cbp.dhs.gov/I94/#/home

[Adventine 3,196]

@HRQX but would that not conflict with the petitions the ex-wife was supposed to file for their kids as part of the court order?

[HRQX 4,145]

2 minutes ago, Adventine said:

the petitions the ex-wife was supposed to file

Nope. Multiple petitions can be filed for the same beneficiary. Also the family court decision(s) cannot preempt eligible Petitioners to file petitions and those petitions to be approved.

[Adventine 3,196]

@HRQX okay, thanks for clarifying. So at least @Gomast can get the ball rolling while he sorts out the issues with the ex-wife.

[Gomast 65]

10 minutes ago, HRQX said:

OP's wife can submit the I-130 petitions now and should do it ASAP. Each filed petition is treated separately. The children are eligible to adjust if they entered legally since they are the "children" of a US citizen; see INA 101(b)(1):

 

Do you at least have a copy of the bio page of their Israeli passports that were used to enter the US? If not can you ask your ex for that info? With that info you can pull up their I-94 records that include nonimmigrant status, date of entry, etc.: https://i94.cbp.dhs.gov/I94/#/home

I think that they have a new passport, and I don't have its number.

She won't give me any information.

 

Here is what comes up when I pull the I-94 with their expired passport:

Admission (I-94) Record Number : (I redacted)

Most Recent Date of Entry: 2014 July 26

Class of Admission : H4

Admit Until Date : 09/30/2015

 

Details provided on the I-94 Information form:

Last/Surname : (I redacted)

First (Given) Name : (I redacted)

Birth Date : (I redacted)

Passport Number : (I redacted)

Country of Issuance : Israel

 

Enter Your Traveler Info: No record found for traveler.

 

What is the reason that I need to do submit the i-130 ASAP? Is it because they will age out at 18? Or because it's better to have it processed while my AOS is being processed?

[Gomast 65]

10 minutes ago, HRQX said:

Nope. Multiple petitions can be filed for the same beneficiary. Also the family court decision(s) cannot preempt eligible Petitioners to file petitions and those petitions to be approved.

Thank you. If they were already issued a green card (which I don't know), than filing another I-130

won't cancel their green card, if they have one, right?

[HRQX 4,145]

1 hour ago, Gomast said:

can be signed by you

I-485, I-765, and I-131 for the 14 year-old must be signed by the 14 year-old: https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-2

3 minutes ago, Gomast said:

What is the reason that I need to do submit the i-130 ASAP?

The sooner the AOS paperwork is submitted then the sooner the I-485 forms for the children are approved.

1 hour ago, Gomast said:

Will an overstay be waived automatically

Your children are "Immediate Relatives" of your US citizen wife: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

Immediate Relatives

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. ^[2] 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

• The applicant is now employed or has ever been employed in the United States without authorization;

• The applicant is not in lawful immigration status on the date he or she files the adjustment application;

• The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

• The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;

• The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or

• The applicant has ever violated the terms of his or her nonimmigrant status.

2 minutes ago, Gomast said:

If they were already issued a green card (which I don't know), than filing another I-130

won't cancel their green card, if they have one, right?

That is correct.

[Gomast 65]

One more question - so for now, my wife will file only the I-130 and wait with the i-485?

[HRQX 4,145]

2 minutes ago, Gomast said:

so for now, my wife will file only the I-130 and wait with the i-485?

That is an option. I still recommend that I-130, I-485, I-864, I-765, and I-131 forms are filed at the same time.

[Gomast 65]

Just now, HRQX said:

That is an option. I still recommend that I-130, I-485, I-864, I-765, and I-131 forms are filed at the same time.

I'll ask my wife to submit all of the forms together, before he turns 14 years old, so that we won't have him sign. (Although I know he will gladly sign).