Super wacky situation here, advice appreciated

[Robert&Karen 264]

Hi there. I came on here in 2011 when I brought my fiance and 2 of her kids here. They came here, we got married, she got a green card, and then it got weird.

She did not renew her (or the kids') green cards at the 2- year mark.

She got convicted of felony DUI at 2 1/2 years.

At three years she got a letter saying she has overstayed. It did not say leave, but it may as well have.

We called a lawyer, he said she can stay and we have to file individually for each person and start new. Plan on $8,000 to cover it all.

Then she got sick. Real sick. Cancer.

So she and her kids (my stepkids) got on a plane to go back to her home country.

Now that they are back and settled she sees a doctor. Six months to live.

Here is where it gets wacky.

She wants to leave her kids to me in her will.

Now I know that her will and a plane ticket will not get the kids to the USA or else all people in all countries would be doing that. Maybe if I was a blood relative, but I am not, and there are no blood relatives in the USA,

Are the kids even eligible to come back here? I know it'd be easier had they never left, but they did.

And if they are, how long a waiting period are we talking about? The kids are 8 and 10, not exactly old enough to run a house on their own.

[Robert&Karen 264]

No one wants to chew on this?

[belinda63 2,981]

Children are not property so they can't be left to anyone in a will.

The courts would decide where the children go. I guess if no one else wants them you could petition with the court to be given custody but as a step-parent I really don't think you have any rights. BUT it would be the laws of that country that decide, not US law so who knows.

[Penguin_ie 5,984]

You are their legal step parent, as you are married to their mom, so if their bio dad has no interest, getting them fresh visas should not be an issue; their previous overstay is not being held against them as they are minors. The only issue is that the process takes about a year, so get going asap. If your wife unfortunately passes away or can no longer care for the children due to her illness, you will have a very good case for an expedite.

[NikLR 13,220]

I agree with penguin here.

As their step-father she can draft a will that gives you legal guardianship of the children. The bio-dad may fight this in court however. But they could also draft up a custody agreement that gives you legal guardianship should anything happen to her. That doesn't mean he won't fight it, if he changes his mind, but starting the process NOW for the kids would show that you both intended for them to come back I would think and would help your case.

[Robert&Karen 264]

Bio dad will not fight it. Older sisters might. As for overstays, what is the typical result for an adult? No return for 5 years?

[Penguin_ie 5,984]

For an adult, it depends how long they overstayed- if overstay is longer than a year, then there is a ten year ban. This can be waived if extreme hardship is shown to the US citizen petitioner.

[NikLR 13,220]

And by adult they mean must be 18 or older when leaving the USA. If you leave before age 18, there is no overstay.