I-30 IR/CR RFE Confusion

[pushbrk 13,378]

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.

1st, this section doesn't directly apply to step children of a US Citizen. It WOULD apply to step children of an LPR, but...

...regardless, please tell me exactly where on the I-130 one would find "the "following to join" box"?

[pushbrk 13,378]

I have listed my spouse and children (which I have indicated as step child).

My careful re-read of your original post, leads me to believe this may be the problem, unless you've simply made a wording mistake. On the I-130 section where any child would be listed,is C.17. "Information about your relative (continued)", where the instruction is to, "List spouse and all children of your relative. The names that belong there are first, YOUR name, as you are your relative's spouse, followed by your spouse's children and their information. Are those the names that appear in C. 17?

To be clear, this is the USC's petition in behalf of their alien "relative", in this case their spouse. In all spouse petitions, the petitioner's name comes first on C. 17 followed by the foreign spouse's children. The only correct answers for relationship are, spouse, son, or daughter. "Step child" is not a correct answer anywhere on the form. Your relative's step children, are either your children who are not immigrating, or your spouse's step children from a previous marriage, who are not eligible to immigrant based on your marriage to their step parent.

Edited October 14, 2015 by pushbrk

[shsl73 29]

I understand...and this is not meant to cause arguments as I'm only trying to resolve the matter. I was simply confused as to why they would be asking for the certificates of the petition is only for the spouse at this time and no indication of "a follow to join," and the fact the the letter indicates if I did not submit ALL requested documentation (meaning the certificates) that the case would be denied; which I'm trying to avoid. The issue with the certificates is that he is not listed on them at this time and with that if I supplied birth certificates with the biological father not this..this too would cause an issue. But none the less, from everything that I've read, we need to work diligently to get his name added and the certificates into my possession to ensure it will not effect case decision.

[B&Z 201]

1st, this section doesn't directly apply to step children of a US Citizen. It WOULD apply to step children of an LPR, but...

...regardless, please tell me exactly where on the I-130 one would find "the "following to join" box"?

Actually, this section of the FAM doesn't specifically apply to stepchildren at all. It applies to actual children of a person who is immigrating. The fact that these are the stepchildren of the USC doesn't matter. What matters is that these are the children of the spouse who will be immigrating. Think forward to when the immigrant spouse arrives and becomes an LPR, then the children of that immigrant will follow to join them. You can't "follow to join" a USC because that USC already has citizenship in the US. Family members "follow to join" an anchor family member who immgrates/arrives in the US before them. That's all I've been trying to explain here, since no one else seemed to understand what that meant. I was trying to be helpful in explaining the meaning, since the original poster didn't understand it.

The OP said "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." Perhaps I misunderstood them. Was my mistake somehow in trusting the testimony of the original poster when they stated they were supposed to put a check mark next to the children to follow to join? Yes, I mistakenly said "check the box" instead of "put a check mark" as they originally stated, but that's a relatively minor error, and one which I'm sure the original poster understood my meaning. And looking over the I-130 and it's instructions, I don't see anything regarding check marks or following to join. Was the wrong form mentioned in the original post? Should I have intuitively known that perhaps it was a different form this person was talking about? I guess now I'll have to go back over a form every time someone asks a question in order for you not to take an opportunity to jump all over me. However, I have made every effort to explain what "following to join" means.

I work very closely with someone who processes "following to join" cases at my place of employment. If there's still any confusion regarding the definition, I can keep trying to word it differently until the meaning becomes clear, if needed.

[shsl73 29]

@B&Z...again, I truly appreciate all the guidance and maybe my post was not very clear. But simply stated, I am a US citizen, filing for my spouse who lives aboard. In section C of the I-130, it states..."list your spouse and all children of your relative." I listed my spouse and step-children. You are correct, there is no box on this form to indicate, "follow-to-join." And because there is no check box on the form, I couldn't obviously check it..and in preparing the AoS, (which has not been submitted), this box is not checked either. As, I read the instructions for the submission of the form, a step-parent filing for a step-child/children would require I-130 for each person and birth certificates attached. In this case, I'm only filing for my spouse only. So the confusion is, why am I being asked to submit certificates if the petition is only for the spouse at this time. Following the instructions(not the law), I was lead to believe that the certificates were only required if I-130's were being submitted for the step-children. In any event, hindsight proves that I should've just gone through a lawyer to eliminate issues and it is what it is. I can't fight it and will do what is being asked in order to continue to move the case forward. Again, I thank you both and I now understand and move on. Thank you both so much!

[pushbrk 13,378]

@B&Z...again, I truly appreciate all the guidance and maybe my post was not very clear. But simply stated, I am a US citizen, filing for my spouse who lives aboard. In section C of the I-130, it states..."list your spouse and all children of your relative." I listed my spouse and step-children. You are correct, there is no box on this form to indicate, "follow-to-join." And because there is no check box on the form, I couldn't obviously check it..and in preparing the AoS, (which has not been submitted), this box is not checked either. As, I read the instructions for the submission of the form, a step-parent filing for a step-child/children would require I-130 for each person and birth certificates attached. In this case, I'm only filing for my spouse only. So the confusion is, why am I being asked to submit certificates if the petition is only for the spouse at this time. Following the instructions(not the law), I was lead to believe that the certificates were only required if I-130's were being submitted for the step-children. In any event, hindsight proves that I should've just gone through a lawyer to eliminate issues and it is what it is. I can't fight it and will do what is being asked in order to continue to move the case forward. Again, I thank you both and I now understand and move on. Thank you both so much!

Did you properly complete section C. 17, of the I-130 by listing yourself as your relative's spouse, and listing your spouse's natural or adopted children as his "son" or "daughter" as applicable? It sound like you did not. What you are writing indicates your listed your spouse in C. 17 and then your spouse's children as "step children". Your spouse's children are YOUR step children, not your spouse's step children.

If you completed the form incorrectly, as it appears, this would explain why you are being asked for documents not required in this case. Nevertheless, I agree that going ahead and sending them, is the right thing to do. When you do, it might be helpful to send them an explanation of your mistake, as well.

[pushbrk 13,378]

Actually, this section of the FAM doesn't specifically apply to stepchildren at all. It applies to actual children of a person who is immigrating. The fact that these are the stepchildren of the USC doesn't matter. What matters is that these are the children of the spouse who will be immigrating. Think forward to when the immigrant spouse arrives and becomes an LPR, then the children of that immigrant will follow to join them. You can't "follow to join" a USC because that USC already has citizenship in the US. Family members "follow to join" an anchor family member who immgrates/arrives in the US before them. That's all I've been trying to explain here, since no one else seemed to understand what that meant. I was trying to be helpful in explaining the meaning, since the original poster didn't understand it.

The OP said "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." Perhaps I misunderstood them. Was my mistake somehow in trusting the testimony of the original poster when they stated they were supposed to put a check mark next to the children to follow to join? Yes, I mistakenly said "check the box" instead of "put a check mark" as they originally stated, but that's a relatively minor error, and one which I'm sure the original poster understood my meaning. And looking over the I-130 and it's instructions, I don't see anything regarding check marks or following to join. Was the wrong form mentioned in the original post? Should I have intuitively known that perhaps it was a different form this person was talking about? I guess now I'll have to go back over a form every time someone asks a question in order for you not to take an opportunity to jump all over me. However, I have made every effort to explain what "following to join" means.

I work very closely with someone who processes "following to join" cases at my place of employment. If there's still any confusion regarding the definition, I can keep trying to word it differently until the meaning becomes clear, if needed.

Your experience with follow to join cases has nothing to do with this case as it is NOT a follow to join case. Step Children of US Citizens simply do not follow to join, even though they ARE the "actual children of the immigrant".

Now, please point out to me just exactly where you found the "follow to join box" on the I-130 form?

Edited October 14, 2015 by pushbrk

[shsl73 29]

There is not a check box on the form...that box only is present in the AoS (and it is not checked there)...

[B&Z 201]

Your experience with follow to join cases has nothing to do with this case as it is NOT a follow to join case. Step Children of US Citizens simply do not follow to join, even though they ARE the "actual children of the immigrant".

Now, please point out to me just exactly where you found the "follow to join box" on the I-130 form?

Please re-read my earlier message in full, in which I stated that I did NOT find that check box.

Please stop trying to make me out to look like an idiot...it's entirely unnecessary. You could have just pointed out to me a long time ago in this discussion that there was no box and no mention of "follow to join" on the forms. I hear what you're saying regarding that this is not a follow to join case at this time. I agree. That would come later after the spouse immigrates. . Once again, it's much less time-consuming to say what you mean instead of asking the other person to waste their time looking elsewhere in order to prove your point and make you "right."

At least I helped the original poster understand what "follow to join" means, which was my intention all along, albeit I was wrong about checking any kind of (non-existent) box on their current petition (which is not currently a "follow-to-join" petition).

[pushbrk 13,378]

There is not a check box on the form...that box only is present in the AoS (and it is not checked there)...

Actually, there is no such box on the I-864 or I-864ez either. The I-864 asks you to list family members that will be immigrating with or within six month of the principal immigrant, but then says not to list any relative listed on a separate petition. Since your step children are not immigrating within six months of your spouse, this box would not be checked and the children would not be listed. If fact, they would never be listed in this section, as when the DO immigrate, they will each need their own petition, AND their own I-864 from you.

I think you get that part, but the I-864 is premature at this point in your case. I write for the reader now, not merely for you. You are not confused about this issue, but others reading could be. Not so much confused by you, but by somebody else insisting there is such a box that should have been checked, when, as you know, there simply isn't one.

[B&Z 201]

@B&Z...again, I truly appreciate all the guidance and maybe my post was not very clear. But simply stated, I am a US citizen, filing for my spouse who lives aboard. In section C of the I-130, it states..."list your spouse and all children of your relative." I listed my spouse and step-children. You are correct, there is no box on this form to indicate, "follow-to-join." And because there is no check box on the form, I couldn't obviously check it..and in preparing the AoS, (which has not been submitted), this box is not checked either. As, I read the instructions for the submission of the form, a step-parent filing for a step-child/children would require I-130 for each person and birth certificates attached. In this case, I'm only filing for my spouse only. So the confusion is, why am I being asked to submit certificates if the petition is only for the spouse at this time. Following the instructions(not the law), I was lead to believe that the certificates were only required if I-130's were being submitted for the step-children. In any event, hindsight proves that I should've just gone through a lawyer to eliminate issues and it is what it is. I can't fight it and will do what is being asked in order to continue to move the case forward. Again, I thank you both and I now understand and move on. Thank you both so much!

I wish you the best of luck with your petition and hope there won't be any further RFEs causing any delays for you. Sorry I got confused there. Take care.

[pushbrk 13,378]

At least I helped the original poster understand what "follow to join" means, which was my intention all along, albeit I was wrong about checking any kind of (non-existent) box on their current petition (which is not currently a "follow-to-join" petition).

When a US Citizen files an I-130 petition for their spouse, it is NEVER a "follow-to-join" petition, as each of the children will need their OWN petition.

[shsl73 29]

You both were a tremendous help and I truly appreciate the guidance. I just had a mess that I need to correct and it can be in the simplest way by just supplying the birth certificates for the step-children...

[Ryan H 3,855]

**One bickering post removed, cease and desist immediately.**

[pushbrk 13,378]

You both were a tremendous help and I truly appreciate the guidance. I just had a mess that I need to correct and it can be in the simplest way by just supplying the birth certificates for the step-children...

If you completed section C. 17, the way you actually said you did, you'll need to include at least a signed letter explaining the relationships properly, in addition to the birth certificates.