I130 Follow To Join

[Asking1 0]

I am a US citizen.  I have a petition in place(approved) for my 2 stepchildren.  I have not applied for visas.  During the process one of them had a baby.  What are the options for having the grandchild follow to join with the stepchild or is that just not possible?

 

Do we have to wait until the stepchild is here in the US without the grandchild and then have the stepchild petition for the grandchild?

 

[appleblossom 2,445]

43 minutes ago, Asking1 said:

I am a US citizen.  I have a petition in place(approved) for my 2 stepchildren.  I have not applied for visas.  During the process one of them had a baby.  What are the options for having the grandchild follow to join with the stepchild or is that just not possible?

 

Do we have to wait until the stepchild is here in the US without the grandchild and then have the stepchild petition for the grandchild?

 

 

That would depend on the category they've applied under. How old were the step children when you petitioned for them? Are they category IR2, F1, or F3?

Edited July 31 by appleblossom

[Boiler 45,445]

I am going to assume you filed for them as immediate relatives so there are no derivatives.

 

So yes assuming the other Parent is agreeable a new LPR can petition their unmarried child, going to take a while.

[Asking1 0]

4 hours ago, appleblossom said:

 

That would depend on the category they've applied under. How old were the step children when you petitioned for them? Are they category IR2, F1, or F3?

They were and still are minors under 18.

 

IR2 would be my best guess.  I think from my reading they are IR2.

 

 

 

[Boiler 45,445]

1 minute ago, Asking1 said:

They were and still are minors under 18.

 

IR2 would be my best guess.  I think from my reading they are IR2.

 

That was my assumption

[appleblossom 2,445]

6 minutes ago, Asking1 said:

They were and still are minors under 18.

 

IR2 would be my best guess.  I think from my reading they are IR2.

 

 

 

 

OK, then no, your grandchild cannot be included. Your stepchild would have to leave him/her behind and then petition for him, but it would take many years. I assume they wouldn't be prepared to do that, so you might want to look at your spouse petitioning for your child (assuming they are a LPR rather than citizen), and then your grandchild could possibly be included if the timing works. 

Edited July 31 by appleblossom

[Asking1 0]

I did speak with two different attorneys.  One said follow to join one said nope.

 

The one who seemed familiar with this and said nope said the same thing.  My wife could petition for them.  But she is ready to take her naturalization and the attorney above said she would have to not do that for a number of years until the new petitions for all three was approved.

 

The attorney also mentioned we could proceed forward with the visas and along the way the stepdaughter could ask/beg for a visa for the granddaughter.   They mentioned a word which I didn't get wrote down for this.  Does this sound familiar in any way?

 

I was also considering adoption.  I could just adopt the two children and the grandchild and then petition for them all.  Would this be faster than my wife remaining a LPR and petitioning for them?

 

Thanks for the replies so far.

[Boiler 45,445]

6 hours ago, Asking1 said:

I am a US citizen.  I have a petition in place(approved) for my 2 stepchildren.  I have not applied for visas. 

 

I think most of us assumed you filed I 130s for them.

 

What have you done?

[appleblossom 2,445]

3 hours ago, Asking1 said:

I did speak with two different attorneys.  One said follow to join one said nope.

 

The one who seemed familiar with this and said nope said the same thing.  My wife could petition for them.  But she is ready to take her naturalization and the attorney above said she would have to not do that for a number of years until the new petitions for all three was approved.

 

The attorney also mentioned we could proceed forward with the visas and along the way the stepdaughter could ask/beg for a visa for the granddaughter.   They mentioned a word which I didn't get wrote down for this.  Does this sound familiar in any way?

 

I was also considering adoption.  I could just adopt the two children and the grandchild and then petition for them all.  Would this be faster than my wife remaining a LPR and petitioning for them?

 

Thanks for the replies so far.

 

There are no derivatives for immediate relative visas. If your wife petitioned for her daughter then derivatives would be allowed, as children of LPR's aren't immediate relatives (hence the longer wait). That will also be why the attorney suggested your wife doesn't apply for naturalisation, as again it would mean no derivatives.

 

There's no 'begging' for a visa either, either one qualifies or one doesn't and asking an immigration officer isn't going to change that. 

 

Re: adoption, my understanding is that you have to have had the child in your physical custody for 2 years before being able to petition them, but search the forums and you'll find info on the requirements. It's a possible option but you'd have to leave the US and live with them in their home country for however long it takes - as above, I think 2 years (but may well have that wrong) plus time to petition - maybe 4 yrs in total.

 

Good luck. 

Edited August 1 by appleblossom

[jan22 3,049]

Adopting the children would have no effect on the results for the visas for which they would qualify and would add years to their cases.  Any petition filed by a stepparent or an adopting parent ultimately results in an “IR” (Immediate Relative) visa.  The result for the baby are the same — no derivatives, no matter what the IR category is, so the baby would have to be left behind.  Once the baby’s mother enters the US, she can immediately petition for the baby, but that will take 3+ years.  
 

While waiting, if she wants to return to care for the baby, to protect her own green card status the mother could apply for a re-entry permit once she has been admitted to the US and then return to her home country until the baby’s visa could be issued.  The re-entry permit is issued for two years and can usually be renewed once.  Certainly not ideal, as it basically delays your step-daughter’s US plans for 3-4 years.
 

I suspect the lawyer who advised you to ask/beg for a visa for the baby was suggesting you try to get a B2 visitor/tourist visa for the baby and then try to adjust to immigrant status once in the US.  That would not work for a few reasons:

• It is highly unlikely that any consular officer would issue such a visa, as it would be condoning fraud.
• Even if granted the maximum stay on a visitor visa (usually 6 months) the baby could not remain in legal status for the time needed for a visa number to be available for adjustment of status.  Once out of status (I.e., past the time of authorized stay), adjustment of status would not be possible.
• It could ultimately cause problems for your step-daughter if any consular/immigration official thought this plan rose to alien smuggling — assisting someone (the baby) to obtain an immigration benefit to which they are not qualified, whether the attempt is successful or not.  This is an extreme outcome, but it has happened.

Another possibility is that the lawyer suggested Humanitarian Parole, but that is not a visa.  It is an application to USCIS to request someone who is not qualified for a visa to be “paroled” (versus admitted) into the US for a temporary period because of humanitarian reasons.  However, the parole process specifically states that it is not meant to be used to replace normal visa processing procedures, so that route, too, would almost certainly not work in your case.

[Crazy Cat 41,811]

19 hours ago, Asking1 said:

What are the options for having the grandchild

In what country are they? Citizenship?

[appleblossom 2,445]

47 minutes ago, jan22 said:

Adopting the children would have no effect on the results for the visas for which they would qualify and would add years to their cases.  Any petition filed by a stepparent or an adopting parent ultimately results in an “IR” (Immediate Relative) visa.  The result for the baby are the same — no derivatives, no matter what the IR category is, so the baby would have to be left behind.  

 

I think the OP was suggesting adopting the baby as well - no idea if that's feasible or not though. 

[jan22 3,049]

24 minutes ago, appleblossom said:

 

I think the OP was suggesting adopting the baby as well - no idea if that's feasible or not though. 

Adopting the baby is not at all feasible, IMO.  Even if there is a remote possibility, it would likely take as long as it would take for the stepdaughter to enter as an LPR and then petition for the baby.

 

It would not seem possible for the US citizen to meet the requirements for adoption for immigration purposes, including those such as:

• Proving the baby is an orphan (he/she’s not); 
• Documenting that the stepdaughter is unable to adequately care for the child and has relinquished all parental rights (but then plans on immigrating to the same household as the baby?!);
• The adopting parent has had legal and physical custody of the baby for two years (baby isn’t even two years old, most likely — even if he/she is, the process for obtaining legal custody and then the  two-year clock hasn’t even been started yet);
• There is a complete and final adoption (hasn’t even been started, don’t know country involved, so don’t even know how feasible an international adoption would be or how long it would take.)
• Showing that the adoption is not being done solely to circumvent US immigration law (which it is, since the plan appears to be that the baby would still be in his/her mother’s custody and care while living with the “adopting” parents).

OP:  I’m sorry, but I see no legal means to do this other than the stepdaughter becoming an LPR and then petitioning the baby or your wife delaying US citizenship and petitioning for her daughter so the baby can be a derivative applicant on that petition.  

Edited August 1 by jan22

[Asking1 0]

5 hours ago, jan22 said:

Adopting the children would have no effect on the results for the visas for which they would qualify and would add years to their cases.  Any petition filed by a stepparent or an adopting parent ultimately results in an “IR” (Immediate Relative) visa.  The result for the baby are the same — no derivatives, no matter what the IR category is, so the baby would have to be left behind.  Once the baby’s mother enters the US, she can immediately petition for the baby, but that will take 3+ years.  
 

While waiting, if she wants to return to care for the baby, to protect her own green card status the mother could apply for a re-entry permit once she has been admitted to the US and then return to her home country until the baby’s visa could be issued.  The re-entry permit is issued for two years and can usually be renewed once.  Certainly not ideal, as it basically delays your step-daughter’s US plans for 3-4 years.

 

This is the best option.  I don't understand one part of it but after looking more into this I think I do.

 

The stepdaughter with a child would come to the US leaving the child in her home country.  After entering the US then She would basically file for I485 to adjust her status and also apply for I130 based on this from the USCIS website together.

 

"Concurrent filing is always allowed for all immediate relatives of a United States citizen because there are no numeric limitations in this category."

 

So she would file I485, I130, and I131 all at the same time once she entered the US.  Once the I131 was approved she could return to her home country to care for the baby and await her I485 to be processed.

 

[appleblossom 2,445]

23 minutes ago, Asking1 said:

 

This is the best option.  I don't understand one part of it but after looking more into this I think I do.

 

The stepdaughter with a child would come to the US leaving the child in her home country.  After entering the US then She would basically file for I485 to adjust her status and also apply for I130 based on this from the USCIS website together.

 

"Concurrent filing is always allowed for all immediate relatives of a United States citizen because there are no numeric limitations in this category."

 

So she would file I485, I130, and I131 all at the same time once she entered the US.  Once the I131 was approved she could return to her home country to care for the baby and await her I485 to be processed.

 

 

You said in your first post their petitions (I-130's) had been approved? So why would you need to file another one? Nobody has suggested she enters the US and then files the I-485, that would be immigration fraud. 

 

She has to apply for the visa in her home country via consular processing. Once she has that, she would enter the US and become a green card holder. She can then petition for her child, that will take several years (how long will depend on which country she's from - see @Crazy Cat's question above).