I-130 was asked wrongly?

[Lenatony 1]

I got married to my U.S. citizen husband in 2015, when we got married my son was over 19 years old.

12/31/2015, DHS received my I-485, my son's I-485 applications and I-130 petition on my behalf by my husband.

02/08/2016, DHS sent us a mail request for initial evidence(I-485), asked to file I-130 on my son's behalf.

04/18/2016, DHS received I-130 petition on behalf of my son.

08/16/2016, and 11/30/2016, DHS sent mails inquiry additional evidence for I -130 on my son's behalf, we did not get the letters.

01/13/2017 to 03/17/2017, we requested by phone and online for not get the letter inquiry additional evidence, but did not get any response.

03/27/2017, we got the denial decision for I-130 on behalf my son, reason is no response for inquiry evidence.

Our I-485 cases are all ready for interview since June 2016.

What we can do right now?

I think we are asked I-130 petition wrongly on behalf my son, since he was over 19 years old when we got married.

Could my son should follow me as a derivative beneficiary to file I-485? because my minor child, I am the principle applicant.

[aleful 1,905]

your son doesn't qualify for a petition in the first place, so your husband shouldn't have even filed anything for him

 

you can't file just the i485 alone for concurrent filing, the i130 needs to go with the i485 because it proves relationship to the beneficiary. when he filed the i130, immigration realized that your son didn't qualify in the first place

 

there are no derivatives when the petitioner sponsor is a USC, petitions for children/stepchildren are filed separately

 

so, bottom line, he wasted time and money because your son, was over 18 when you married. for a stepparent to file for a stepchild, the marriage had to take place before your son was 18

 

it's not immigration's fault, it's your husband's fault for now finding out the correct process

 

you can file for him once you are a LPR, but your son being illegally in the country has a 10 year ban, he should never have overstayed his tourist visa. he will need a waiver and a hardship letter to overcome the ban, overstay is not forgiven for children of legal residents

 

 

Edited March 29, 2017 by aleful

[Lenatony 1]

Thanks for your comments!

At the beginning, we just filed my I-130, I-485 and my son's I-485. My husband did not file I-130 for my son. But DHS asked for my son's I-130, so I really think it is their fault.

After My son's I-130 was denied, I think things should go back to the right process, my son should be qualified for my I-130's derivative beneficiary. I know other friends they got green cards for their children like my son's situation based on marriage with USC.

 

Edited March 29, 2017 by Lenatony
more information needs to display.

[geowrian 22,337]

6 minutes ago, Lenatony said:

After My son's I-130 was denied, I think things should go back to the right process, my son should be qualified for my I-130's derivative beneficiary. I know other friends they got green cards for their children like my son's situation based on marriage with USC.

I-130 does not have derivative beneficiaries for immediate relatives:

 

" Fortunately, figuring out whether a relative is eligible for a type of immigrant visa that allows for derivative beneficiaries is simple, because only one immigrant visa category does not do so: the so-called “immediate relative” category. The “immediate relative” category includes a U.S. citizen's parents, spouse, and unmarried children under 21 years of age."

http://www.nolo.com/legal-encyclopedia/when-children-can-immigrate-the-us-with-their-parents-derivatives.html

[NigeriaorBust 4,087]

  Immigration is very good at following a process.  You submitted an I485 for your son which requires an I30 that wasn't there so they requested it. Once they had the I130 they could rule that your son didn't qualify for it. ( which is correct because of his age when you married )   So the I130 is denied the I485 is dead and your son is out of status and subject to a 10 year ban.   You could file for the son but there is currently a 2 year wait and your son must me near 21 which means an 8 or more year wait.  Because he has the ban he will be unable to stay.   There is a high probability that the visa class for adult children will go away before he gets a visa. 

[Lenatony 1]

Thanks for your comments, so anything I can do right now? His I-485 is still ready for interview.

[milimelo 4,500]

Send him to home country to start his 10 yr ban. 

[NigeriaorBust 4,087]

  His I 485 isn't going to do anything.  He will NOT be getting a green card.  He has a 10 year ban that will start as soon as he leaves the US.   He will not be able to legally live in the US.   No work no college ( he won't even get an F1 because of the ban)

[Lenatony 1]

I do not understand, He has been stayed here legally since he came to the US, whenever he was in F2 or AOS, we all have the I-797 notices show his lawful status, how could he get 10 years ban? Thanks for comments. and after checking all the documents, I found he was still in his 18 years old when we got married, does this help?

[NigeriaorBust 4,087]

  He applied for a benefit he has no claim to. 

[Unlockable 7,315]

6 hours ago, Lenatony said:

I do not understand, He has been stayed here legally since he came to the US, whenever he was in F2 or AOS, we all have the I-797 notices show his lawful status, how could he get 10 years ban? Thanks for comments. and after checking all the documents, I found he was still in his 18 years old when we got married, does this help?

No that does not help. The marriage had to take place BEFORE YOUR SON"S 18th BIRTHDAY. That means the day he turned 18 he no longer qualified.

 

Look, we all know it is very hard to accept. But the sooner you accept that you soon will not be getting a green card, the sooner you can come to terms with it and move on. He can have his own life back in his home country or any other country he is eligible to gain residency for that matter. You are probably in the denial stage of grief and are looking for any ounce of hope. Nothing wrong with that. It is maternal instinct. 

 

But for now there is not much you can do because of your son's ban. 

 

[Jojo92122 1,924]

What visa did your son enter the US on?  K-2 visa or something else?

Edited April 4, 2017 by Jojo92122

[NigeriaorBust 4,087]

30 minutes ago, Jojo92122 said:

What visa did your son enter the US on?  K-2 visa or something else?

  OP has stated F2   dependent of an F1 student.  

[Lenatony 1]

 

Thanks JOjo and NigeriaorBust for your kind comments. Yes, he entered with F2 Visa, I was the F1. But I understood once I started applying GC, his F2 was invalid,  but as a minor child under 21 years old , he is supposed to follow his parents. Is this right? The fact is, he did not do anything wrong, why could suffer 10 years ban? is this fair for him? Do I have any chance to overcome the ban? I divorced with his father when he was little, I brought him here, he always follows my status, then now when he is in college, but I will be forced to give him up by the immigration law? If this is really going to happen, feel very guilty to him!

[Lenatony 1]

Thanks NuestraUnion for your kind comments, but could not accept this reality. As a mother, I can not abandon him, never!