Visa for Stepson Question

[joshuastrauss3 2]

My wife and step-son EWI from Mexico in March of 2005 (stepson was 1 1/2 years old). I am a US born citizen and we live in Indianapolis, IN. He is now 12 and neither of them have left the country since then. My wife has a consulate interview in August and then we will move to Tijuana until her waiver is approved. A lawyer did the whole filing process for us including preparing the waiver. Anyway, we haven't filed anything for my step-son. I want to file the I-130 application this week. But, we plan to move to Tijuana in 2 months (I will work in San Diego and have a mailing address in San Diego).

Will him leaving the country affect this process in any way? And what other forms need to be filed with the I-130 for him to have a visa? I know he has to leave the country for his interview in Ciudad Juarez when everything is approved, but if we move to Mexico before that, will it affect anything? Thank you so much for any help you can give us!

[Georgia16 2,858]

I'm confused. Why file anything for them if you are leaving the country anyway?

If the are IN the us you can adjust their status. Overstay if forgiven when married to a USC but if you leave now it will be lost and they'll have to file for a IR-1/IR-2 but with a darn lot of overstay to overcome?

Edited June 18, 2016 by Georgia16

[joshuastrauss3 2]

Hi, thanks for the quick response! Since they both entered the country illegally without inspection or visa (through the desert of Nogales, Mexico into Arizona), they are not eligible to adjust status here. They are both required to attend a consulate appointment in their country (Ciudad Juarez in Mexico). My wife is the only one who really needs to leave the country to attend her appointment in Ciudad Juarez, but I can't afford to maintain two households so that is why we are moving to Tijuana together (and I will work in San Diego). But my real question here is the filing process for my stepson, and will him being in Mexico affect anything through this process.

Edited June 18, 2016 by joshuastrauss3

[Georgia16 2,858]

Okay then I understand better!

Since he is a minor I wouldn't believe so! BUT more experienced users will come an answer your question on him!

[canadian_wife 1,791]

Your step-son, since he arrived as a child, does not accrue any unlawful presence.

Have you looked into DACA for the child? I am not sure how that will benefit him if you are moving to MX but it may be something to ask the lawyer

good luck

[joshuastrauss3 2]

Yes it does seem like something absurd, but unless I adopt him and then file paperwork this is the only way. We have gone to 3 different consultations about this and we were all told the same thing. It's crazy but it's all because of the entering without inspection. Thank you for your response!

We were told about DACA that he would have to be 15 years old to apply and he is only 12, so to file the I130 would be the fastest way for him to become a resident. Not sure if this is 100% true but that is what we were told.

[EM_Vandaveer 2,370]

Could you not file the I-601A? That way your wife would have an approved waiver BEFORE leaving for Mexico.

Doing it the way you are planning now is risking that the waiver will be denied & your wife will be stuck in Mexico.

Edited June 18, 2016 by EM_Vandaveer

[joshuastrauss3 2]

Hi, my wife couldn't apply for the provisional waiver because she brought my step son here illegally. That is technically human smuggling and immigration would deny the waiver. My stepson doesn't need a waiver at all because he is a minor.

[EM_Vandaveer 2,370]

Hi, my wife couldn't apply for the provisional waiver because she brought my step son here illegally. That is technically human smuggling and immigration would deny the waiver. My stepson doesn't need a waiver at all because he is a minor.

Is there not an exception for him being her own child?

Never mind, found it. If it was not her own child she could not even submit a waiver, it would be unwaiverable.

Edited June 18, 2016 by EM_Vandaveer

[joshuastrauss3 2]

There definitely should be an exception, it's not like she did it for money or any other reason. But for immigration reasons it's all the same and they will deny the provisional waiver. With the regular waiver they will approve it though.

[NikLR 13,220]

For him to BACK to the USA, he will need an I-130 processed in the USA, and then the entire NVC thing so he can also have an interview and get an immigrant visa. He ALSO needs and immigrant visa to move. His mother's visa will not work for him as well.

[joshuastrauss3 2]

We understand that part, the question is, will him being outside of the US cause his I130 and visa application to be denied? Or is it ok for him to be in Mexico the whole time?

[NikLR 13,220]

Generally speaking family are supposed to be outside the country the entire time.

You follow the same path as you did for your wife. I-130. NVC. Medical in Mexico. Consulate Interview. It takes about a year. Start now.

[joshuastrauss3 2]

Ok that does make perfect sense and that is what I was thinking, thank you so much!

[NikLR 13,220]

Youre welcome. Good luck on your waiver