Bringing kids to US: LPR vs USC step parent

[LAR30 0]

Hi,

My husband is an LPR from Mozambique. He has children from a previous relationship (out of wedlock) that we would like to bring to live with us in the US. I have been reading the postings from people here and on other websites and it seems that we have a few options to do this. If anyone could advise us on which would be best, I would really appreciate it.

1. He petitions to bring them here. From what I have read, this could take 2-3 years given that he is a LPR. He is eligible for citizenship. If we petition to bring them now, and he is granted citizenship before the petition is approved, can we upgrade to another? How difficult is it to do this?

2. we have also considered the possibility of my petitioning for them, as a USC, as my stepchildren. Given that he had these children out of wedlock and he has to prove a relationship, it seems that it would be even more difficult for me to prove a relationship. Is it worth going this route, given that it's quicker but could be more difficult to prove?

Anyone who has been in a similar situation and can give an advice, please do. I don't know if we can afford an immigration lawyer, but if it seems that is the only way for this to be successful, please advise on that as well.

Thanks for your help,

LAR30

[Kazulie 132]

Someone will correct me if I'm wrong.....

1) it will definitely be faster if you petition for them. 8-10 months, most likely, and they could be here in the states. If he were to become a citizen before they get here, I THINK they automatically become one once they get here.

2) for proof of relationship, you have to proof your relationship with their father. Not so much them.

What is the ages of the kids? I was assuming they are young or at least under 18 at time of marriage.

Edited May 2, 2012 by Kazulie

[LAR30 0]

Someone will correct me if I'm wrong.....

1) it will definitely be faster if you petition for them. 8-10 months, most likely, and they could be here in the states. If he were to become a citizen before they get here, I THINK they automatically become one once they get here.

2) for proof of relationship, you have to proof your relationship with their father. Not so much them.

What is the ages of the kids? I was assuming they are young or at least under 18 at time of marriage.

Thank you so much. I had a feeling it would be faster I filed but wasn't sure. I did not realize that the can also become citizens once my husband does, that is good.

Yes, i have our marriage certificate. I wasn't sure if I also need to show a relationship with them. I know the instructions state that for a father petitioning for children born out of wedlock that he has to show "proof of a relationship" so it made me think that in our case, I would have to do the same. Or still show proof of his relationship to them as well as my relationship to him.

The kids are 5 and 7, so definitely under 18 at the time of marriage.

[Deputy Purple 1,294]

Yes, i have our marriage certificate. I wasn't sure if I also need to show a relationship with them. I know the instructions state that for a father petitioning for children born out of wedlock that he has to show "proof of a relationship" so it made me think that in our case, I would have to do the same. Or still show proof of his relationship to them as well as my relationship to him.

Since you would be petitioning for the children you need to prove that YOU have a petition-able relationship with the children.

First you need to prove he is their biological father. Next you need to prove that you are married to him. Those two relationships make you their Step Mother which is a petition-able relationship.

Just proving you are married to him doesn't prove any relationship to the kids until you prove his relationship to them.

FWIW, I have completed two CR/IR-2 petitions, first was at the same time as my wife's CR-1 and the second one was 2 years later.

[ceadsearc 516]

If he petitions as an LPR he can upgrade the petition when he becomes a citizen. Or you can petition them now. You prove relationship to him and he proves relationship to them. If they were born out of wedlock he may have to do a DNA test regardless of who petitions them. But you petitioning will be faster.

[LAR30 0]

Since you would be petitioning for the children you need to prove that YOU have a petition-able relationship with the children.

First you need to prove he is their biological father. Next you need to prove that you are married to him. Those two relationships make you their Step Mother which is a petition-able relationship.

Just proving you are married to him doesn't prove any relationship to the kids until you prove his relationship to them.

FWIW, I have completed two CR/IR-2 petitions, first was at the same time as my wife's CR-1 and the second one was 2 years later.

Thanks everyone for allyour advice. it is very helpful. Can anyone send me a summary of the process step by step. I feel like when we did the K-1 visa that I was able to find an abundance of information explaining the process- from gathering and organizing the petition paperwork to submitting to the interview etc. But I am not as clear about this process or what should be included with the petition (for examples good examples to establish a relationship between my husband and his kids, besides their birth certificates with his name). So any suggestions are welcome.

Also, does anyone have a sample I-130 that they did for a child. All I can seem to find is examples for a spouse.

[beejay 123]

The process is pretty similar to filing an I-130 for a spouse with a few differences (you don't need the G325a but it's not a problem to include it) so you can use the VJ guide as a rough outline.

The instruction from the USCIS website are also pretty helpful and can provide more detailed information http://www.uscis.gov/files/form/i-130instr.pdf

You should also come join our thread of others filing the I-130 for their bio/stepchildren:

Stand alone I-130 for stepchildren

Good luck!

[LAR30 0]

So around the same time that I posted my question here I also posted on a website to ask questions to lawyer, avvo.com, and got some interesting responses. One person said that my husband and I can only bring the children to the US if the country allows the father to take the children. Another suggested that we adopt the children because it would be easier. Has anyone be given this advice, or come across problems because the father is trying to bring the child to the US? The tone of the email made it sound like even with consent from their mother that it may not be possible, depending on the country.

[Gary and Alla 3,694]

So around the same time that I posted my question here I also posted on a website to ask questions to lawyer, avvo.com, and got some interesting responses. One person said that my husband and I can only bring the children to the US if the country allows the father to take the children. Another suggested that we adopt the children because it would be easier. Has anyone be given this advice, or come across problems because the father is trying to bring the child to the US? The tone of the email made it sound like even with consent from their mother that it may not be possible, depending on the country.

We need to know the age of the children. IF they are under 21 NOW and WERE under age 18 when you married the father, YOU can petition them with an I-130 and YES you will need the permission of the absent parent for them to receive a visa. And depending on the country you made need DNA testing to prove he is the father.

Their CR-2 visa MUST be issued and they must enter the USA before they turn age 21. If they are already age 20 then you should submit an expedite request ewith the petition based on the age out of the children. The procedures for the I-130 process are in the Spouse visa forums here at this site.

If they were over 18 when you married then your husband will need to petition them as an LPR and that takes a lot longer. It also takes a lot longer if they are over 21.

Edited May 4, 2012 by Gary and Alla

[LAR30 0]

We need to know the age of the children. IF they are under 21 NOW and WERE under age 18 when you married the father, YOU can petition them with an I-130 and YES you will need the permission of the absent parent for them to receive a visa. And depending on the country you made need DNA testing to prove he is the father.

Their CR-2 visa MUST be issued and they must enter the USA before they turn age 21. If they are already age 20 then you should submit an expedite request ewith the petition based on the age out of the children. The procedures for the I-130 process are in the Spouse visa forums here at this site.

If they were over 18 when you married then your husband will need to petition them as an LPR and that takes a lot longer. It also takes a lot longer if they are over 21.

Thanks. I did some more research and realized that the lawyer who advised we adopt did so because it would then make the children Immediate Relatives. I also came across the family preference levels, but it doesn't mention step children. Are step children of a USC in the first preference category?

I should clarify that they are both under 18.

Edited May 4, 2012 by LAR30

[LAR30 0]

Thanks. I did some more research and realized that the lawyer who advised we adopt did so because it would then make the children Immediate Relatives. I also came across the family preference levels, but it doesn't mention step children. Are step children of a USC in the first preference category?

I should clarify that they are both under 18.

Another question... Can I send a copy of my passport as proof of citizenship, or does it have to be my birth certificate. Do I need to copy all pages? Or just the page with my photo?

[beejay 123]

You can petition them as your immediate relatives (no "waiting" in line for a visa to be available) because of your stepparent/stepchild relationship. You include proof of your citizenship (US passport or US birth certificate) and proof of marriage to your husband (Marriage certificate) creating the link between you and him. You also include the children's birth certificates proving a link between them and your husband (assuming he is listed on the birth certificate) and that establishes the petition-able stepparent/stepchild relationship between you and them. They are now considered your immediate relatives. As you said because the children were born out of wedlock you send proof of your husband's involvement in his children's lives.

If they require more evidence they will let you know. Worse comes to worst they will request a DNA test at the time of the interview. Then that will prove beyond a doubt the children are his.

From the I-130 directions:

Steppparent/Stepchild: If your petition is based on a stepparent-stepchild relationship, you must file your petition with a copy of the marriage certificate of the stepparent to the child's natural parent showing that the marriage occurred before the child's 18th birthday, copies of documents showing that any prior marriages were legally terminated and a copy of the stepchild's birth certificate.

Here is the bit you mentioned which also applies to your case, but it is in reference to your husband and his children, not you and his children:

A child born out of wedlock and you are the father: If the child was not legitimated before reaching 18 years old, you must file your petition with copies of evidence that a bona fide parent-child relationship existed between the father and the child before the child reached 21 years. This may include evidence that the father lived with the child, supported him or her, or otherwise showed continuing parental interest in the child's welfare.

If you chose to send a copy of your passport as proof of your citizenship you can send just your bio page but just to avoid any confusion I would recommend copying all pages. I actually prefer to send a birth certificate when applicable but that is just my preference.

Also if your husband is a citizen by the time you are at the NVC stage of the process you can submit the I-846W (exemption from Affidavit of Support) instead of the I-864 because then your stepchildren will have a claim to US citizenship based on their father once they have been admitted to the US.

Did you go through the immigration process with your husband?

[Deputy Purple 1,294]

Thanks. I did some more research and realized that the lawyer who advised we adopt did so because it would then make the children Immediate Relatives. I also came across the family preference levels, but it doesn't mention step children. Are step children of a USC in the first preference category?

I should clarify that they are both under 18.

That Lawyer is an IDIOT... For immigration purposes Step-Children are already Immediate Relatives.

Be aware of the fact that you will need the childrens' mother's consent to immigrate them unless she has lost her parental rights.

[LAR30 0]

That Lawyer is an IDIOT... For immigration purposes Step-Children are already Immediate Relatives.

Be aware of the fact that you will need the childrens' mother's consent to immigrate them unless she has lost her parental rights.

Thanks!

This is another complication. The mother is out of the picture. She "abandoned" the children a few years ago. They now live with my in-laws, their grandparents. this situation is not uncommon in Mozambique, or other African countries. Nothing is done "legally", children are just given to their grandparents to be raised. I guess my husband can ask around to try to find the mother, but if he is not able to, I'm not sure how we will get her consent. I suppose this depends on how Mozambique law defines loss of parental rights.

[Deputy Purple 1,294]

Thanks!

This is another complication. The mother is out of the picture. She "abandoned" the children a few years ago. They now live with my in-laws, their grandparents. this situation is not uncommon in Mozambique, or other African countries. Nothing is done "legally", children are just given to their grandparents to be raised. I guess my husband can ask around to try to find the mother, but if he is not able to, I'm not sure how we will get her consent. I suppose this depends on how Mozambique law defines loss of parental rights.

He needs to consult with a lawyer locally in Mozambique regarding him getting sole custody of the children if the mother can't or won't sign the consent letter.