I-30 IR/CR RFE Confusion

[shsl73 29]

Looking for some sound advice and direction. I completed the I-130 for my spouse. The form indicates to add all children which I did--my spouses children. It goes on to ask to place a check mark if you're requesting them "to follow to join", which I didn't check. We are planning on filing for them separately to come beyond the 6 months as listed on the form. I rec'd and RFE asking for copies of birth certificates and don't understand why? The instructions state "...if you are filing for a step-child/children" you must supply copies of birth certificates. Again, I am not at this time and the I-797C only indicates that I'm filing for my spouse. Why would I then need to supply the birth certificates? Secondly, I can supply a birth certificates if it ultimately means that the case wouldn't be denied or placed on adminstrative hold but he is currently not listed and we fear that the process will take longer to legitimatize the child than the alloted time given to provide the response to the RFE. Therefore, if we supplied the birth certificate without his name listed, will that then pose a problem with the case?

Any assistance would be greatly appreciated.

[Ryan H 3,902]

IMO, this appears to be an erroneous RFE. I would call USCIS, ask to be connected to a tier 2 operator and clear it up that way.

[shsl73 29]

Thank you!

[pushbrk 13,639]

Looking for some sound advice and direction. I completed the I-130 for my spouse. The form indicates to add all children which I did--my spouses children. It goes on to ask to place a check mark if you're requesting them "to follow to join", which I didn't check. We are planning on filing for them separately to come beyond the 6 months as listed on the form. I rec'd and RFE asking for copies of birth certificates and don't understand why? The instructions state "...if you are filing for a step-child/children" you must supply copies of birth certificates. Again, I am not at this time and the I-797C only indicates that I'm filing for my spouse. Why would I then need to supply the birth certificates? Secondly, I can supply a birth certificates if it ultimately means that the case wouldn't be denied or placed on adminstrative hold but he is currently not listed and we fear that the process will take longer to legitimatize the child than the alloted time given to provide the response to the RFE. Therefore, if we supplied the birth certificate without his name listed, will that then pose a problem with the case?

Any assistance would be greatly appreciated.

If you are a US Citizen, there is no follow to join related to the I-130 you are filing for your spouse. If you are an LPR, and will file separate petitions for step children later, just say so, as there is follow to join in such a case. On the other hand. If one of the children is your natural child, they would want you to provide the birth certificate, as "relationship evidence".

If none of the above apply, then I would call and see if you can straighten it out. First, be certain the form was completed correctly. Second, make sure you're clear with us as to the relationships between all the people named on your petition.

Where children are listed on the I-130, the first name listed would be YOURS, followed by natural or adopted children of your spouse. Your own children would only be listed if you and your spouse have child or children together, adopted or natural.

[shsl73 29]

Thank you for responding. After reading your message I understand..but to clarify the issue..section C of the I-130 (continued Information about your relative) states list all states, "list your spouse and all children of your relative..I have listed my spouse and children (which I have indicated as step child). There is and was no indication of "follow-to-join," which is why I am a tad bit confused as to why I'm being asked for their birth certificates when the instructions clearly say, "if you are filing for step-child/children you must supply birth certificates." I didn't realize that they were closed today but I don't want to call and get some canned response, which is what I got before. I was told that the RFE came from the service center and "they" had no way of accessing that information. I'm not sure if at this point I just need to bite the bullet and get an attorney...because I am working a limited timeframe and if if thing is omitted it will cause for the case to be "denied."

[shsl73 29]

Sorry and if I may add...I double checked the form and the instructions and I don't see where the discrepancy is...who ever you are, God must've heard my prayers as I have been a mess since the receipt of this. Aside from them requesting the certificates, I have a laundry list of things which I know where in the package but it's fine, I made copies of the entire package and can pull from there and obtain anything else to substantiate our marriage. The biggest concern was the birth certificate...thank you sooo much!

[pushbrk 13,639]

I would simply to reply to the RFE with a letter signed by you stating. "I am a US Citizen filing for my spouse only. I am not petitioning for step children at this time."

[shsl73 29]

Thank you. I will try that, after I call tomorrow to make sure that any omission of documentation will not cause the case to be denied; which is my worse fear.

[pushbrk 13,639]

Thank you. I will try that, after I call tomorrow to make sure that any omission of documentation will not cause the case to be denied; which is my worse fear.

Omitting birth certificates for step children who are not immigrating and for which no petition is filed is not an omission of required documents.

[B&Z 201]

Looking for some sound advice and direction. I completed the I-130 for my spouse. The form indicates to add all children which I did--my spouses children. It goes on to ask to place a check mark if you're requesting them "to follow to join", which I didn't check. We are planning on filing for them separately to come beyond the 6 months as listed on the form. I rec'd and RFE asking for copies of birth certificates and don't understand why? The instructions state "...if you are filing for a step-child/children" you must supply copies of birth certificates. Again, I am not at this time and the I-797C only indicates that I'm filing for my spouse. Why would I then need to supply the birth certificates? Secondly, I can supply a birth certificates if it ultimately means that the case wouldn't be denied or placed on adminstrative hold but he is currently not listed and we fear that the process will take longer to legitimatize the child than the alloted time given to provide the response to the RFE. Therefore, if we supplied the birth certificate without his name listed, will that then pose a problem with the case?

Any assistance would be greatly appreciated.

When the form asked you if the children would be "following to join", the form was asking you if the children will join you separately later. I know it's confusing, but you should have checked that box, since you do intend for the children to "follow to join". "Following to join" is a derivative visa classification that covers family members joining relatives who have recently immigrated to the US, essentially "following" the original applicant who already arrived.

You will need to contact the agency who sent you the RFE to tell them that you DO intend for the children to "follow to join" and are not including them in your current visa application.

Edited October 13, 2015 by B&Z

[shsl73 29]

Thanks all. I have contacted the 800 number only to be read a script, be told to schedule an infopass appointment and the omission of the birth certificates could result in denial. So, supplying the birth certificates is what I will do to eliminate potential denial.

[pushbrk 13,639]

When the form asked you if the children would be "following to join", the form was asking you if the children will join you separately later. I know it's confusing, but you should have checked that box, since you do intend for the children to "follow to join". "Following to join" is a derivative visa classification that covers family members joining relatives who have recently immigrated to the US, essentially "following" the original applicant who already arrived.

You will need to contact the agency who sent you the RFE to tell them that you DO intend for the children to "follow to join" and are not including them in your current visa application.

There is no derivative status for step children of a US Citizen, so the children are NOT following to join. If and when they immigrate, separate petitions will be filed for them.

All of the advice above would be correct if the petitioner was an LPR instead of a USC, but for a USC it is dead wrong.

[shsl73 29]

Correct...but omitting the birth certificates at this stage, according the person I spoke with could result in denial. Odd thing is, that could go to a local field service office by scheduling an appointment and I went to schedule an appointment the field office only seems to accept appointments based on certain visa types and refers you back to the 800 or USCIS case status page.

Again, it just seems easier to provide the certificates and try to move on, even though it makes absolutely no sense (based on their written instructions of when certificates should be applied for when the petition is solely for my spouse, the beneficiary).

[pushbrk 13,639]

Correct...but omitting the birth certificates at this stage, according the person I spoke with could result in denial. Odd thing is, that could go to a local field service office by scheduling an appointment and I went to schedule an appointment the field office only seems to accept appointments based on certain visa types and refers you back to the 800 or USCIS case status page.

Again, it just seems easier to provide the certificates and try to move on, even though it makes absolutely no sense (based on their written instructions of when certificates should be applied for when the petition is solely for my spouse, the beneficiary).

No argument, if you have the certificates to send. Bear in mind though that we call the USCIS 800 number the misinformation line for a reason. Unless you manage to escalate through to an actual USCIS employee instead of the contract script readers, you really can't count on anything they say being correct. Not even a change of address can be expected to be competently handled the first time.

[B&Z 201]

There is no derivative status for step children of a US Citizen, so the children are NOT following to join. If and when they immigrate, separate petitions will be filed for them.

All of the advice above would be correct if the petitioner was an LPR instead of a USC, but for a USC it is dead wrong.

The derivative status of the children will be attached to the immigrating spouse once they adjust status in the US, not to the US Citizen who is petitioning for the spouse. This is not a petition for the US Citizen to get a visa to come to the US, hence, yes, the children will be following to join the immigrant spouse who IS immigrating. The "following to join" box should have been checked on the form to indicate that the principle alien (the immigrating spouse/beneficiary) does NOT intend to immigrate with their children at this time.

See:

9 FAM 40.1 N7.1 General (CT:VISA-1581; 10-04-2010) The term “following to join,” as used in INA 101(a)(27)© and INA 203(d), permits an alien to obtain a nonimmigrant visa (NIV) or immigrant visa (IV) and the priority date of the principal alien as long as the alien following to join has the required relationship with the principal alien. There is no statutory time period during which the following to join alien must apply for a visa and seek admission into the United States. However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated, there is no longer a basis to following to join. As an example, a person would no longer qualify as a child “following to join” upon reaching the age of 21 years (unless they qualify for the benefits of the Child Status Protection Act, see 9 FAM 42.42 N12) or by entering into a marriage. There is no requirement that the “following to join” alien must take up residence with the principal alien in order to qualify for the visa. (See 9 FAM 42.42 N11.) The term “following to join,” also applies to a spouse or child following to join a principal alien who has adjusted status in the United States.

I work in a capacity that makes me familiar with this classification, please don't tell me I'm dead wrong when the FAM says exactly what I said.

I'm pretty sure the reason they're asking for the certificates for the children is to verify their bonafide relationship to the immigrating spouse, which must be done anyway.

Edited October 14, 2015 by B&Z