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peejay

What is the definition of a "child"?

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Filed: Country: Belarus
Timeline

I will be filing the I-751 to lift conditions on both my wife and stepdaughter in mid October. My wife came to the USA on a K-1 and her daughter on a K-2 at the same time. My stepdaughter was 18 years old at the time of my marriage to her mom. She was included on her mom's AoS petition and got her Conditional Residency Card well within 90 days of her mom receiving her card. Under the Who May File section of the I-751 instruction it states:

You may include your conditional resident children in your petition, or they may file separately.

My stepdaughter just turned 21 years old at the beginning of September. She is not married and lives with us. Is she a resident child and can she be included in my wife's petition?

I got this definition from the US-CIS website glossary:

Child - Generally, an unmarried person under 21 years of age who is: a child born in wedlock; a stepchild, provided that the child was under 18 years of age at the time that the marriage creating the stepchild relationship occurred; a legitimated child, provided that the child was legitimated while in the legal custody of the legitimating parent; a child born out of wedlock, when a benefit is sought on the basis of its relationship with its mother, or to its father if the father has or had a bona fide relationship with the child; a child adopted while under 16 years of age who has resided since adoption in the legal custody of the adopting parents for at least 2 years; or an orphan, under 16 years of age, who has been adopted abroad by a U.S. citizen or has an immediate-relative visa petition submitted in his/her behalf and is coming to the United States for adoption by a U.S. citizen.

I found this in Sec. 216.4 Joint petition to remove conditional basis of lawful permanent resident status for alien spouse on the US-CIS website:

(2) Dependent children. Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent's petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child's residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent's petitioning spouse due to the child's not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751). (Amended 5/23/94; 59 FR 26587)

I would think that she would be included on her mom's I-751 since she was also included on her mom's I-129F and AoS petitions. The definition of a child is what is confusing to me. We would save having to pay an extra $205 if she could be included on her mom's I-751. And it would be easier to file.

What do you think? I appreciate any opinions. Thanks.


"Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave."

"...for the system to be credible, people actually have to be deported at the end of the process."

US Congresswoman Barbara Jordan (D-TX)

Testimony to the House Immigration Subcommittee, February 24, 1995

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It definitely is confusing. I am definitely no expert when it comes to these things, and I would first suggest that you get competent legal counsel to let you know about this issue (an immigration attorney could probably tell you off the top of his head). I am also not telling you one way or another what to do here because I have no clue, but only throwing open the doors of the analysis.

However, I would think this situation has come up before, and perhaps someone with the actual experience of a child turning 21 during the CPR status period can let you know what they did and what was the result.

However, to me, it appears that the word "child" is defined first as "being under 21 years of age" before any of the other qualifiers kick in. Therefore, once a person reaches 21, they are no longer a child. The 216.4 language would appear at first glance to take that back, but perhaps not because when it uses the word "child" or "children" you may have to go back to the definition (perhaps, but see below) and again, are left with the "only anyone under 21 is a child" thing. However, I don't know from the portions of the rules you posted if the definition applies to every immigration rule with the word "child" in it, or just a rule where "child" is not otherwise defined or qualified, which is an important distinction because, if the latter, 216.4 might cover your situation, but only if that was the case (that the "21 year old litmus test" did not apply there, but only that the person seeking permanent status was a child at the time CPR status was obtained and applied with the CPR).

Definitely another instance of our wonderful and crystal clear immigration laws...ha...


August 27, 2004 - - Married

09/07/04. Apply I-130 - (receipt date) (Day 1/NA/NA)

10/12/04. I-130 Approved - (Day 35/NA/NA)

10/16/04. NVC Receives Case (Day 39/Day 1/NA)

11/08/04. NVC Assigns Case Number (Day 62/Day 23/Day 1)

12/06/04. I-864 and IV fees sent out express (Day 88/Day 49/Day 26)

12/20/04. I-864 and DS-230 "generated" (Day 102/Day 63/Day 40)

01/07/05. I-864 and DS-230 sent express (Day 120/Day 81/Day 58)

01/10/05. I-864 and DS-230 Rec'd at NVC (Day 123/Day 84/Day 61)

01/12/05. NVC reports receipt of papers and begins entering information (Day 125/Day 86/Day 63)

01/14/05. System updated with "biographic forms received" message. (Day 127/Day 88/Day 65)

02/03/05. Case APPROVED and forwarded to EMBASSY! (Day 147/Day 108/Day 85)

02/10/05. Embassy receives case, interview appointment arranged via email for 03/03/05!

SUCCESS! VISA 'INTERVIEW' WITH NO QUESTIONS TO MY WIFE AT ALL COMPLETED ON 03-03-05. VISA IN HAND ON 03-04!!! DAY 175 (AFTER SENDING I-130) - DAY 136 (AFTER RECEIPT OF CASE AT NVC) - DAY 113 (AFTER ASSIGNMENT OF CASE NUMBER)

REMOVAL OF CONDITIONS

01/08/07. I-751 Mailed to TSC

01/11/07. Checks Cashed

01/22/07. I-797C Received. Green Card Extended 12 Months

02/08/07. Bimoetrics appointment (for 3/01) received

03/01/07. Biometrics Taken in Tampa

03/02/07. Online - Record - Updated (probably for biometrics)

06/04/07. Card Production Ordered (Allow 30 days for delivery)

06/11/07. 10 year card received.

NATURALIZATION

04/08/08. Filed application

08/01/01. Received Interview Date (September 25)

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Filed: Timeline
I will be filing the I-751 to lift conditions on both my wife and stepdaughter in mid October. My wife came to the USA on a K-1 and her daughter on a K-2 at the same time. My stepdaughter was 18 years old at the time of my marriage to her mom. She was included on her mom's AoS petition and got her Conditional Residency Card well within 90 days of her mom receiving her card. Under the Who May File section of the I-751 instruction it states:
You may include your conditional resident children in your petition, or they may file separately.

My stepdaughter just turned 21 years old at the beginning of September. She is not married and lives with us. Is she a resident child and can she be included in my wife's petition?

I got this definition from the US-CIS website glossary:

Child - Generally, an unmarried person under 21 years of age who is: a child born in wedlock; a stepchild, provided that the child was under 18 years of age at the time that the marriage creating the stepchild relationship occurred; a legitimated child, provided that the child was legitimated while in the legal custody of the legitimating parent; a child born out of wedlock, when a benefit is sought on the basis of its relationship with its mother, or to its father if the father has or had a bona fide relationship with the child; a child adopted while under 16 years of age who has resided since adoption in the legal custody of the adopting parents for at least 2 years; or an orphan, under 16 years of age, who has been adopted abroad by a U.S. citizen or has an immediate-relative visa petition submitted in his/her behalf and is coming to the United States for adoption by a U.S. citizen.

I found this in Sec. 216.4 Joint petition to remove conditional basis of lawful permanent resident status for alien spouse on the US-CIS website:

(2) Dependent children. Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent's petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child's residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent's petitioning spouse due to the child's not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751). (Amended 5/23/94; 59 FR 26587)

I would think that she would be included on her mom's I-751 since she was also included on her mom's I-129F and AoS petitions. The definition of a child is what is confusing to me. We would save having to pay an extra $205 if she could be included on her mom's I-751. And it would be easier to file.

What do you think? I appreciate any opinions. Thanks.

Unmarried children under age 21 of K1 fiancé(e) visa applicants qualify for K2 visas.

By the way, although the form uses the word child and children, Section 216 refers to the alien dependent as an alien son or daughter.

Sec. 216. [8 U.S.C. 1186a]

(a) In general.-

(1) Conditional basis for status.-Notwithstanding any other provision of this Act, an alien spouse (as defined in subsection (g)(1)) and an alien son or daughter (as defined in subsection (g)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.

(g)

(2) The term "alien son or daughter" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage.


"diaddie mermaid"

You can 'catch' me on here and on FBI.

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I will be filing the I-751 to lift conditions on both my wife and stepdaughter in mid October. My wife came to the USA on a K-1 and her daughter on a K-2 at the same time. My stepdaughter was 18 years old at the time of my marriage to her mom. She was included on her mom's AoS petition and got her Conditional Residency Card well within 90 days of her mom receiving her card. Under the Who May File section of the I-751 instruction it states:
You may include your conditional resident children in your petition, or they may file separately.

My stepdaughter just turned 21 years old at the beginning of September. She is not married and lives with us. Is she a resident child and can she be included in my wife's petition?

I got this definition from the US-CIS website glossary:

Child - Generally, an unmarried person under 21 years of age who is: a child born in wedlock; a stepchild, provided that the child was under 18 years of age at the time that the marriage creating the stepchild relationship occurred; a legitimated child, provided that the child was legitimated while in the legal custody of the legitimating parent; a child born out of wedlock, when a benefit is sought on the basis of its relationship with its mother, or to its father if the father has or had a bona fide relationship with the child; a child adopted while under 16 years of age who has resided since adoption in the legal custody of the adopting parents for at least 2 years; or an orphan, under 16 years of age, who has been adopted abroad by a U.S. citizen or has an immediate-relative visa petition submitted in his/her behalf and is coming to the United States for adoption by a U.S. citizen.

I found this in Sec. 216.4 Joint petition to remove conditional basis of lawful permanent resident status for alien spouse on the US-CIS website:

(2) Dependent children. Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent's petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child's residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent's petitioning spouse due to the child's not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751). (Amended 5/23/94; 59 FR 26587)

I would think that she would be included on her mom's I-751 since she was also included on her mom's I-129F and AoS petitions. The definition of a child is what is confusing to me. We would save having to pay an extra $205 if she could be included on her mom's I-751. And it would be easier to file.

What do you think? I appreciate any opinions. Thanks.

I don't know the answer to your question, but I wanted to point out that the definition that applies here is more likely either the first one "a child born in wedlock" or the fourth "a child born out of wedlock when the application is based on relationship to the mother." That is, your stepdaughter's application is based on her relationship to her mother, not to you.

Also, I would say that either (1) she can be included on her mother's application or (2) she's out of luck because she's over 21. I don't see anything anywhere to suggest that she would need a separate application.

I'm inclined to lean towards the first (that she can be included on her mother's application) because she basically already has received the benefit--I mean, she got the K-2 (or K-4) and permanent residency while she was under 21. She's already a permanent resident, in essence all she's going to be doing is renewing her residency. I know it's slightly more complicated than that, but my understanding is that aging out applies to if you turn 21 before AOS is granted, not before the conditions are lifted.

I would say, unless you hear from other posters who were in the same situation, you should seek a consultation with an immigration attorney. And that possibly it wouldn't hurt to seek one anyway.


Bethany (NJ, USA) & Gareth (Scotland, UK)

-----------------------------------------------

01 Nov 2007: N-400 FedEx'd to TSC

05 Nov 2007: NOA-1 Date

28 Dec 2007: Check cashed

05 Jan 2008: NOA-1 Received

02 Feb 2008: Biometrics notice received

23 Feb 2008: Biometrics at Albuquerque ASC

12 Jun 2008: Interview letter received

12 Aug 2008: Interview at Albuquerque DO--PASSED!

15 Aug 2008: Oath Ceremony

-----------------------------------------------

Any information, opinions, etc., given by me are based entirely on personal experience, observations, research common sense, and an insanely accurate memory; and are not in any way meant to constitute (1) legal advice nor (2) the official policies/advice of my employer.

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Filed: IR-1/CR-1 Visa Country: Canada
Timeline

Couldn't one make an infopass appointment? Why fork over $$ to a lawyer if you don'ty have to.


Canadians Visiting the USA while undergoing the visa process, my free advice:

1) Always tell the TRUTH. never lie to the POE officer

2) Be confident in ur replies

3) keep ur response short and to the point, don't tell ur life story!!

4) look the POE officer in the eye when speaking to them. They are looking for people lieing and have been trained to find them!

5) Pack light! No job resumes with you

6) Bring ties to Canada (letter from employer when ur expected back at work, lease, etc etc)

7) Always be polite, being rude isn't going to get ya anywhere, and could make things worse!!

8) Have a plan in case u do get denied (be polite) It wont harm ur visa application if ur denied,that is if ur polite and didn't lie! Refer to #1

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Couldn't one make an infopass appointment? Why fork over $$ to a lawyer if you don'ty have to.

Because I don't trust USCIS to give correct information, but I *do* trust them to hold it against the OP and his family if they act based on wrong information that USCIS gave them?

Most state bar associations have things where for a certain fee (usually $25 or so) you can get a half-hour consultation with a lawyer specializing in your problem with no obligation to hire the lawyer.


Bethany (NJ, USA) & Gareth (Scotland, UK)

-----------------------------------------------

01 Nov 2007: N-400 FedEx'd to TSC

05 Nov 2007: NOA-1 Date

28 Dec 2007: Check cashed

05 Jan 2008: NOA-1 Received

02 Feb 2008: Biometrics notice received

23 Feb 2008: Biometrics at Albuquerque ASC

12 Jun 2008: Interview letter received

12 Aug 2008: Interview at Albuquerque DO--PASSED!

15 Aug 2008: Oath Ceremony

-----------------------------------------------

Any information, opinions, etc., given by me are based entirely on personal experience, observations, research common sense, and an insanely accurate memory; and are not in any way meant to constitute (1) legal advice nor (2) the official policies/advice of my employer.

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As you can see, there are many different interpretations among the non-expert, non-immigration lawyers, as usual...of course you shouldn't rely on one interpretation or another at all (no matter how 'authoritative' or definitive it sounds) since whether the person says it or not, it's really just each person's lay opinion and they certainly aren't going to be giving you any guarantees...and as usual, there are plenty of people here willing to gamble the success or failure of your petition on their advice (which is really only a guess). Now if someone whom has had this exact experience could answer your question, then you'd have something to run with, but so far no luck on that. A good immigration lawyer could probably answer your question off the top of her/his head in 2 minutes, so I don't think that would cost so much...if anything...

...Personally, if I had to make a bet, I would bet that once a person turns 21 all bets are off (they are no longer a child) and you'd have to file separately unless there is an exception for an adult (now 21 or older) that was a child (under 21) when the original Conditional Resident petition including that child was filed...

Good luck!

Edited by japau

August 27, 2004 - - Married

09/07/04. Apply I-130 - (receipt date) (Day 1/NA/NA)

10/12/04. I-130 Approved - (Day 35/NA/NA)

10/16/04. NVC Receives Case (Day 39/Day 1/NA)

11/08/04. NVC Assigns Case Number (Day 62/Day 23/Day 1)

12/06/04. I-864 and IV fees sent out express (Day 88/Day 49/Day 26)

12/20/04. I-864 and DS-230 "generated" (Day 102/Day 63/Day 40)

01/07/05. I-864 and DS-230 sent express (Day 120/Day 81/Day 58)

01/10/05. I-864 and DS-230 Rec'd at NVC (Day 123/Day 84/Day 61)

01/12/05. NVC reports receipt of papers and begins entering information (Day 125/Day 86/Day 63)

01/14/05. System updated with "biographic forms received" message. (Day 127/Day 88/Day 65)

02/03/05. Case APPROVED and forwarded to EMBASSY! (Day 147/Day 108/Day 85)

02/10/05. Embassy receives case, interview appointment arranged via email for 03/03/05!

SUCCESS! VISA 'INTERVIEW' WITH NO QUESTIONS TO MY WIFE AT ALL COMPLETED ON 03-03-05. VISA IN HAND ON 03-04!!! DAY 175 (AFTER SENDING I-130) - DAY 136 (AFTER RECEIPT OF CASE AT NVC) - DAY 113 (AFTER ASSIGNMENT OF CASE NUMBER)

REMOVAL OF CONDITIONS

01/08/07. I-751 Mailed to TSC

01/11/07. Checks Cashed

01/22/07. I-797C Received. Green Card Extended 12 Months

02/08/07. Bimoetrics appointment (for 3/01) received

03/01/07. Biometrics Taken in Tampa

03/02/07. Online - Record - Updated (probably for biometrics)

06/04/07. Card Production Ordered (Allow 30 days for delivery)

06/11/07. 10 year card received.

NATURALIZATION

04/08/08. Filed application

08/01/01. Received Interview Date (September 25)

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...Personally, if I had to make a bet, I would bet that once a person turns 21 all bets are off (they are no longer a child) and you'd have to file separately unless there is an exception for an adult (now 21 or older) that was a child (under 21) when the original Conditional Resident petition including that child was filed...

Good luck!

Generally, there are three cases where someone a (family) petition can be filed for over-21 member:

  1. immediate relative (parent, and "derivative" spouse)
  2. sibling (F-4)--a category which IMO should be expunged (2 reasons: a. takes way too long--about 12 years at best case, no hope of speedup; b. in general, it sounds like a "last gasp of hope" category applicable only to those who would otherwise be ineligible to immigrate)
  3. unmarried child OVER 21, of USC

None of these applicable here.


2005/07/10 I-129F filed for Pras

2005/11/07 I-129F approved, forwarded to NVC--to Chennai Consulate 2005/11/14

2005/12/02 Packet-3 received from Chennai

2005/12/21 Visa Interview Date

2006/04/04 Pras' entry into US at DTW

2006/04/15 Church Wedding at Novi (Detroit suburb), MI

2006/05/01 AOS Packet (I-485/I-131/I-765) filed at Chicago

2006/08/23 AP and EAD approved. Two down, 1.5 to go

2006/10/13 Pras' I-485 interview--APPROVED!

2006/10/27 Pras' conditional GC arrives -- .5 to go (2 yrs to Conditions Removal)

2008/07/21 I-751 (conditions removal) filed

2008/08/22 I-751 biometrics completed

2009/06/18 I-751 approved

2009/07/03 10-year GC received; last 0.5 done!

2009/07/23 Pras files N-400

2009/11/16 My 46TH birthday, Pras N-400 approved

2010/03/18 Pras' swear-in

---------------------------------------------------------------------

As long as the LORD's beside me, I don't care if this road ever ends.

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Filed: IR-1/CR-1 Visa Country: Canada
Timeline

Couldn't one make an infopass appointment? Why fork over $$ to a lawyer if you don'ty have to.

Because I don't trust USCIS to give correct information, but I *do* trust them to hold it against the OP and his family if they act based on wrong information that USCIS gave them?

Most state bar associations have things where for a certain fee (usually $25 or so) you can get a half-hour consultation with a lawyer specializing in your problem with no obligation to hire the lawyer.

One can get bad info from a lawyer. We seeked advice from an immigration attorney prior to stating the visa process and received very bad information. I always like to back things up to get that comfy feeling. Seek an appt with the infopass people and if not happy with their response, seek assistance of a qualified lawyer. Best of luck


Canadians Visiting the USA while undergoing the visa process, my free advice:

1) Always tell the TRUTH. never lie to the POE officer

2) Be confident in ur replies

3) keep ur response short and to the point, don't tell ur life story!!

4) look the POE officer in the eye when speaking to them. They are looking for people lieing and have been trained to find them!

5) Pack light! No job resumes with you

6) Bring ties to Canada (letter from employer when ur expected back at work, lease, etc etc)

7) Always be polite, being rude isn't going to get ya anywhere, and could make things worse!!

8) Have a plan in case u do get denied (be polite) It wont harm ur visa application if ur denied,that is if ur polite and didn't lie! Refer to #1

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...Personally, if I had to make a bet, I would bet that once a person turns 21 all bets are off (they are no longer a child) and you'd have to file separately unless there is an exception for an adult (now 21 or older) that was a child (under 21) when the original Conditional Resident petition including that child was filed...

Good luck!

Generally, there are three cases where someone a (family) petition can be filed for over-21 member:

  1. immediate relative (parent, and "derivative" spouse)
  2. sibling (F-4)--a category which IMO should be expunged (2 reasons: a. takes way too long--about 12 years at best case, no hope of speedup; b. in general, it sounds like a "last gasp of hope" category applicable only to those who would otherwise be ineligible to immigrate)
  3. unmarried child OVER 21, of USC

None of these applicable here.

But the I-751 isn't a petition to bring the family member to the US, which the I-130 or I-129F are, or a petition to grant residence to someone in the United States like the I-485. I view it as much more similar to the I-90 (which obviously has no limits on age since it's filed every ten years forever) than anything else, *especially* in the case of a child whose original petition was derivative (and who therefore does not have to present any evidence at all on his/her own behalf in support of the I-751).

In the absence of an answer from someone who's done this, or a memo or policy statement for USCIS, I'd still say you need to speak with a lawyer.

Although I'm not entirely sure what harm it would do to just file the I-751, list your stepdaughter, and when the NOA comes, make an InfoPass appointment to get her the stamp (since AIUI the NOA doesn't mention children) by taking a photocopy of the I-751 and the NOA for your wife. At the worst, you'd find out then that she's not eligible; at the best, she'd have her residence extended and no need to worry.

It'd be nice to know, but I don't think you'd be any worse off if you did that than if you tried to find out the answer first.

Edited by sparkofcreation

Bethany (NJ, USA) & Gareth (Scotland, UK)

-----------------------------------------------

01 Nov 2007: N-400 FedEx'd to TSC

05 Nov 2007: NOA-1 Date

28 Dec 2007: Check cashed

05 Jan 2008: NOA-1 Received

02 Feb 2008: Biometrics notice received

23 Feb 2008: Biometrics at Albuquerque ASC

12 Jun 2008: Interview letter received

12 Aug 2008: Interview at Albuquerque DO--PASSED!

15 Aug 2008: Oath Ceremony

-----------------------------------------------

Any information, opinions, etc., given by me are based entirely on personal experience, observations, research common sense, and an insanely accurate memory; and are not in any way meant to constitute (1) legal advice nor (2) the official policies/advice of my employer.

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Filed: Timeline

Not exactly the same sitiuation, but does address an age 21 "child".

http://www.uscis.gov/lpBin/lpext.dll/inser...tm#fr-59fr26587

Petition for Removal of Conditions

Section 216A©(1) and 216A(d)(2)(A) of the Act require that the alien entrepreneur file a petition for removal of conditions during the 90-day period before the second anniversary of the alien's obtaining conditional permanent resident status. The final regulation provides that the alien entrepreneur file Form I-829, Petition by Entrepreneur to Remove Conditions, with the Service Center having jurisdiction over the location of the alien's commercial enterprise. The petition should include the alien entrepreneur's spouse and children, even if the children marry or reach the age of twenty-one during the period of conditional residence. The final rule also permits the spouse and children of a deceased principal alien entrepreneur to file a petition and have conditions removed, if the spouse and/or children can show that, despite the entrepreneur's death, the requirements for removal of conditions have been met.

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Filed: Timeline
I will be filing the I-751 to lift conditions on both my wife and stepdaughter in mid October. My wife came to the USA on a K-1 and her daughter on a K-2 at the same time. My stepdaughter was 18 years old at the time of my marriage to her mom. She was included on her mom's AoS petition and got her Conditional Residency Card well within 90 days of her mom receiving her card. Under the Who May File section of the I-751 instruction it states:
You may include your conditional resident children in your petition, or they may file separately.

My stepdaughter just turned 21 years old at the beginning of September. She is not married and lives with us. Is she a resident child and can she be included in my wife's petition?

I got this definition from the US-CIS website glossary:

Child - Generally, an unmarried person under 21 years of age who is: a child born in wedlock; a stepchild, provided that the child was under 18 years of age at the time that the marriage creating the stepchild relationship occurred; a legitimated child, provided that the child was legitimated while in the legal custody of the legitimating parent; a child born out of wedlock, when a benefit is sought on the basis of its relationship with its mother, or to its father if the father has or had a bona fide relationship with the child; a child adopted while under 16 years of age who has resided since adoption in the legal custody of the adopting parents for at least 2 years; or an orphan, under 16 years of age, who has been adopted abroad by a U.S. citizen or has an immediate-relative visa petition submitted in his/her behalf and is coming to the United States for adoption by a U.S. citizen.

I found this in Sec. 216.4 Joint petition to remove conditional basis of lawful permanent resident status for alien spouse on the US-CIS website:

(2) Dependent children. Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent's petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child's residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent's petitioning spouse due to the child's not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751). (Amended 5/23/94; 59 FR 26587)

I would think that she would be included on her mom's I-751 since she was also included on her mom's I-129F and AoS petitions. The definition of a child is what is confusing to me. We would save having to pay an extra $205 if she could be included on her mom's I-751. And it would be easier to file.

What do you think? I appreciate any opinions. Thanks.

Caveat: Personal Opinion following ;)

I think maybe we are analysing this too much. The daughter met the age requirement to be eligible to enter as a K2 and the conditions of her adjustment were that her mother entered on a K-1 and married you within 90 days. Age of a K2 only plays a role in the non-immigrant entry, I don't believe that current age at the point of removal of conditions matters at all. In so far as the instructions are concerned, I remember something mentioned on another board by an immigration authority (BTW) that was something about "expressio unius est exclusio alterius" which roughly translates to "the express mention of one thing implies the exclusion of another". The instructions call for the K2 to file a separate I-751 when he/she adjusted status more than 90 days after the K1. If that is not the case, I'd interpret it to mean that no separate I-751 is required. Of course, so as not to mislead, this is merely my opinion!


"diaddie mermaid"

You can 'catch' me on here and on FBI.

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I will be filing the I-751 to lift conditions on both my wife and stepdaughter in mid October. My wife came to the USA on a K-1 and her daughter on a K-2 at the same time. My stepdaughter was 18 years old at the time of my marriage to her mom. She was included on her mom's AoS petition and got her Conditional Residency Card well within 90 days of her mom receiving her card. Under the Who May File section of the I-751 instruction it states:

You may include your conditional resident children in your petition, or they may file separately.

My stepdaughter just turned 21 years old at the beginning of September. She is not married and lives with us. Is she a resident child and can she be included in my wife's petition?

I got this definition from the US-CIS website glossary:

Child - Generally, an unmarried person under 21 years of age who is: a child born in wedlock; a stepchild, provided that the child was under 18 years of age at the time that the marriage creating the stepchild relationship occurred; a legitimated child, provided that the child was legitimated while in the legal custody of the legitimating parent; a child born out of wedlock, when a benefit is sought on the basis of its relationship with its mother, or to its father if the father has or had a bona fide relationship with the child; a child adopted while under 16 years of age who has resided since adoption in the legal custody of the adopting parents for at least 2 years; or an orphan, under 16 years of age, who has been adopted abroad by a U.S. citizen or has an immediate-relative visa petition submitted in his/her behalf and is coming to the United States for adoption by a U.S. citizen.

I found this in Sec. 216.4 Joint petition to remove conditional basis of lawful permanent resident status for alien spouse on the US-CIS website:

(2) Dependent children. Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent's petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child's residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent's petitioning spouse due to the child's not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751). (Amended 5/23/94; 59 FR 26587)

I would think that she would be included on her mom's I-751 since she was also included on her mom's I-129F and AoS petitions. The definition of a child is what is confusing to me. We would save having to pay an extra $205 if she could be included on her mom's I-751. And it would be easier to file.

What do you think? I appreciate any opinions. Thanks.

Caveat: Personal Opinion following ;)

I think maybe we are analysing this too much. The daughter met the age requirement to be eligible to enter as a K2 and the conditions of her adjustment were that her mother entered on a K-1 and married you within 90 days. Age of a K2 only plays a role in the non-immigrant entry, I don't believe that current age at the point of removal of conditions matters at all. In so far as the instructions are concerned, I remember something mentioned on another board by an immigration authority (BTW) that was something about "expressio unius est exclusio alterius" which roughly translates to "the express mention of one thing implies the exclusion of another". The instructions call for the K2 to file a separate I-751 when he/she adjusted status more than 90 days after the K1. If that is not the case, I'd interpret it to mean that no separate I-751 is required. Of course, so as not to mislead, this is merely my opinion!

This is basically what I thought from the very beginning, but I had opinions and comments from various sources that gave me some doubts due to her present age of 21.

The fact is that it took roughly 9 1/2 months for my wife and 10 1/2 months for my stepdaughter to get their conditional residency (residency since dates) from the I-485 AoS NOA. That was just our tough luck that we had to file at an office with slow processing times. Other regional offices processed AoS in 1/4 to 1/3 of the time. Our processing times were out of our control and not due to any errors (RFE) on our part. The point being...if US-CIS had processed our I-485 AoS quicker, my stepdaughter would have been 20 years old when it came time to file our I-751 to lift conditions.

Also...my stepdaughter was 17 years old when we filed the I-129F for the K-1 / K-2 visas and 17 years old when we got the I-129F NOA1. She was already 18 years old when the K-2 visa was eventually issued and I married her mom. It took 8 months to get this accomplished without any RFE's and many regional offices' processing times were much faster. Again...this was out of our control and through no fault of our own. Had the visas been issued sooner in a more timely manner, she may have been 17 years old when I married her mom.

In my opinion...the fact that the US-CIS approved her AoS even though I married her mom when she was 18 years old negates the definition of a child in the US-CIS website glossary. In other words...it's a done deal.

This whole process started when my stepdaughter was a 17 year old dependent child and on that basis I believe that her eventual Legal Permanent Resident status will have to end on that assumption. My stepdaughter's residency is tied to her mom and our marriage.

You are right...I think we are all analyzing too much. Government bureaucrats are often guilty of analyzing too much also. That is why I wanted my fellow VJers to play devil's advocate.

At this point, the best course of action would be for me to schedule an INFOPASS appointment and present these facts for clarification before filing. I thank everyone for their opinions and appreciate the help. I'll keep everyone posted.


"Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave."

"...for the system to be credible, people actually have to be deported at the end of the process."

US Congresswoman Barbara Jordan (D-TX)

Testimony to the House Immigration Subcommittee, February 24, 1995

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I agree with sparkofcreation - one should get their legal advice from an attorney. Actions taken on the advice from the USCIS that turns out to be wrong is not the USCIS fault or problem to correct.

A consultation on this issue should be very inexpensive.

Yodrak

Couldn't one make an infopass appointment? Why fork over $$ to a lawyer if you don'ty have to.

Because I don't trust USCIS to give correct information, but I *do* trust them to hold it against the OP and his family if they act based on wrong information that USCIS gave them?

Most state bar associations have things where for a certain fee (usually $25 or so) you can get a half-hour consultation with a lawyer specializing in your problem with no obligation to hire the lawyer.

Edited by Yodrak

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I agree with sparkofcreation - one should get their legal advice from an attorney. Actions taken on the advice from the USCIS that turns out to be wrong is not the USCIS fault or problem to correct.

A consultation on this issue should be very inexpensive.

Yodrak

Couldn't one make an infopass appointment? Why fork over $$ to a lawyer if you don'ty have to.

Because I don't trust USCIS to give correct information, but I *do* trust them to hold it against the OP and his family if they act based on wrong information that USCIS gave them?

Most state bar associations have things where for a certain fee (usually $25 or so) you can get a half-hour consultation with a lawyer specializing in your problem with no obligation to hire the lawyer.

I went to my local US-CIS office on InfoPass today to get clarification on whether we should file my stepdaughter's I-751 separate from her mom or on her mom's petition. Geez...what a waste of time.

At first the immigration officer said to do it together. But I pressed her as to her reason for saying that. Then she went in the back and left me at the window to ask somebody else. She returned and said the guy in the back told her my stepdaughter had to file separately. So I pressed her as to the logic of that...when she told me something completely different just a minute before. She then told me that the I-751 is filed at the district office and they don't do them in the local office. I already knew that...the district office doesn't have InfoPass, so you pretty much have to go to the local office to ask questions. She then told me that no matter what...if we file it wrong then the district office will just send it back.

I thought the reason I went to InfoPass was to get some answers so I could file correctly????

So I have now made an appointment with an immigration attorney for a consultation to get some paid advice. We'll see how that turns out.


"Credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave."

"...for the system to be credible, people actually have to be deported at the end of the process."

US Congresswoman Barbara Jordan (D-TX)

Testimony to the House Immigration Subcommittee, February 24, 1995

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