i130 while in US for hubby, i130 for stepdaughters in mexico

[blue_angel_29 108]

I am a USC. My husband is an overstayer of his work visa in 2008.He has been in the US since, never went outside US. His daughters are in Mexico with the ex-wife(daughters' mom)

We are getting ready to file to Adjust his Status. I'm just so confused. I've done my research and I get 50-50 on things like him being an overstayer. I read some articles saying that marrying a USC is NOT a golden ticket to getting LPR, which means he will get the 10 year ban. I also read some that says overstay is overlooked if applying for i130.

Which is it? If we file for i130, will he get sent back to Mexico and stay there for 10 years?

Also, the we are planning to file for i485, i131 and i765. I also read that applying for i131, Advanced Parole, it does NOT guarantee entry if my hubby went to Mexico.

Does that mean other people are just so lucky to be granted entry to US on an AP?

He has 2 daughters in Mexico that we would like to apply to be LPRs as well, since the daughters are with the mom, what kind of document do i give USCIS that states that the mom gives consent for the daughters to go to the US.

Do we just get her to make a letter stating she gives permission and just ask her to sign it?

Any help is very much appreciated.

[Transborderwife 4,666]

If your husband is here with no other inadmissabilities then follow the guides here for a normal aos. FYI, even with a green card nobody is ever guaranteed re entry. He'd likely be fine travelling with AP.

As for his daughters does the mother want to allow them to immigrate? How old are they? Since they are from Mexico it would be faster for him to petition them once he has his greencard in about a year give or take. Providing they're under 18 it should only take a year or two after that.

[newacct 688]

For your husband, I-130 and I-485 should be filed concurrently for Adjustment of Status. There is no benefit to filing them separately. He has no ban because he hasn't left the US. There is a 10-year ban only on accruing 1 year of "unlawful presence" and then leaving the US. That's why he should NOT leave the US at this point. He is simply out of status, but being out of status is not relevant to Adjustment of Status of an Immediate Relative. There is nothing to "overlook"; it is simply not relevant. What matters is that he entered legally.

He should apply for EAD (with I-765) and AP (with I-131) because they are free and there is no downside; he doesn't have to use them even if he gets them. Nothing "guarantees" entry; e.g. a visa does not guarantee entry, but under normal circumstances you should not be denied entry. An Advance Parole is probably even more likely to get entry than a visa (you do not have to be judged on whether you qualify for that visa status); unless the I-485 was already denied, or you have some ban you didn't know about, there really isn't much reason of being denied entry. The Matter of Arrabally case clearly says that leaving on AP does not trigger the unlawful presence ban if there are no other bans. Of course, the safest choice is to not leave during the Adjustment of Status process, and that should be his plan; but having AP is still better than not in the 0.01% chance there is a some super emergency that he must leave. Having the option cannot hurt.

As for his daughters does the mother want to allow them to immigrate? How old are they? Since they are from Mexico it would be faster for him to petition them once he has his greencard in about a year give or take. Providing they're under 18 it should only take a year or two after that.

If the stepdaughters were under 18 when the OP and husband married, and they are under 21, they would be Immediate Relatives if petitioned by the OP, and that would be fastest because it has no wait.

[Transborderwife 4,666]

How does it have no wait? An f2a as per the visa bullitens says different

[Boiler 45,658]

OP is a USC

What type of work visa did he hàvw

[Transborderwife 4,666]

OP is a USC

What type of work visa did he hàvw

Right but looking back at the visa timelines it takes longer for children of a USC vs lpr

[Boiler 45,658]

Not if they are immediate relatives?

[blue_angel_29 108]

Thanks for the fast replies.

His visa type is R H2A. That's what it says in his visa.

Daughters are 8 and 14. My hubby is talking to ex wife for possibility of daughters to stay here for a while after GC is approved. I do hope she gives her consent, so, if she does give consent, how do we peove that she did? I wouldn't want an international lawsuit saying that the kids were, God forbid, kidnapped.

Anyway, I guess I'm filing 3 separate i130s for the three of them, then i485, i765 and i131 for my hubby. If all things go well, all three gets approved and gets green card. After they get their GC, the kids will fly to US and live with us while we wait for my hubby to be able to file for citizenship.

The plan after they get their GC is for me my hubby and kids to live in US until he can file for citizenship and get the daughters automatic citizenship.

[Boiler 45,658]

So he was an Agricultural Worker.

You can file and adjust, probably need a Mexican Lawyer to sort out the legalities of the custody issues assuming the Mother is agreeable.

Edited September 26, 2015 by Boiler

[aleful 1,905]

hi

unfortunately his oldest might be out of luck. to be able to derive citizenship, your husband has to become a USC before she turns 18

al things would have to be really quick, remember for him to become a USC he has to be a LPR for at least 3 years. and if you have been married for less than 2 years, he will have to remove conditions to get his 10 year GC before he applies for citizenship

in that case, she will have to wait 5 years of residency and take the citizenship test.

and you haven't even started yet the process for filing for your husband, so time isn't on her side to derive citizenship

the whole adjustment of status packet for your husband, as you are filing concurrently for him

[newacct 688]

Right but looking back at the visa timelines it takes longer for children of a USC vs lpr

Unmarried under-21 children of USC are in the Immediate Relative category which always has 0 wait for visa numbers (it is permanently unlimited). Unmarried under-21 children of LPR are in the F2A category which has a wait of about 1.5 years for visa numbers.

al things would have to be really quick, remember for him to become a USC he has to be a LPR for at least 3 years. and if you have been married for less than 2 years, he will have to remove conditions to get his 10 year GC before he applies for citizenship

in that case, she will have to wait 5 years of residency and take the citizenship test.

He just has to be an LPR for 3 years (3 years from getting the green card). Removal of Conditions is not relevant to this.

[aleful 1,905]

Unmarried under-21 children of USC are in the Immediate Relative category which always has 0 wait for visa numbers (it is permanently unlimited). Unmarried under-21 children of LPR are in the F2A category which has a wait of about 1.5 years for visa numbers.

He just has to be an LPR for 3 years (3 years from getting the green card). Removal of Conditions is not relevant to this.

I was merely pointing out a time frame

[newacct 688]

I was merely pointing out a time frame

The time frame is 3 years of residency. You said 5 years.

[aleful 1,905]

The time frame is 3 years of residency. You said 5 years.

hi

no, I was talking about the oldest daughter, if you read the rest, he will become a USC in 3 years, but if he doesn't become that before his oldest daughter turns 18, then she will have to wait 5 years or residency and take the test, and then I said time is not on her side, because she is 14 already and the OP hasn't even filed for her husband

I replied to the OP about deriving citizenship for his children once he becomes a USC

[blue_angel_29 108]

hi

no, I was talking about the oldest daughter, if you read the rest, he will become a USC in 3 years, but if he doesn't become that before his oldest daughter turns 18, then she will have to wait 5 years or residency and take the test, and then I said time is not on her side, because she is 14 already and the OP hasn't even filed for her husband

I replied to the OP about deriving citizenship for his children once he becomes a USC

Yeah.. I agree, we are cutting it really really close. I do hope everything goes super smoothly so we can get her derivative so as to save us the time and money on applying for her citizenship.

so, hopefully, we get the quickest possible officer to handle our case.. fingers crossed..

Hopefully, his citizenship will be as quick as mine, I was one of he lucky people to get citizenship in 5 months, I filed April 2015 and got citizenship Sept 2015, in HOUSTON!!