IR 2 age concerns

[Akwasi100 1]

My wife filed a petition for me in 2013 and was approved by USCIS but was refused in 2015 for non bonafide marriage. USCIS reaffirmed the petition in 2018. I have 2 sons which I indicated in the DS 260 who were 15 and 18 yrs in 2014 at that time so they qualified for IR2. It took USCIS 3.5 yrs to reaffirmed the petition and now the elder is getting to 23 yrs which is pass the age limit so my question is when I immigrate and I file for them later, are they going to face a waiting period since the delay was not my fault.

[pushbrk 13,625]

1 hour ago, Akwasi100 said:

My wife filed a petition for me in 2013 and was approved by USCIS but was refused in 2015 for non bonafide marriage. USCIS reaffirmed the petition in 2018. I have 2 sons which I indicated in the DS 260 who were 15 and 18 yrs in 2014 at that time so they qualified for IR2. It took USCIS 3.5 yrs to reaffirmed the petition and now the elder is getting to 23 yrs which is pass the age limit so my question is when I immigrate and I file for them later, are they going to face a waiting period since the delay was not my fault.

If they are unmarried, then the fact they were both under 18 when the marriage took place is the qualifier.

[NigeriaorBust 4,087]

  Their age at the time of marriage is the key to if your wife can petition for them ,   Is your wife a US citizen , if so the children needed their own petitions.   Where they filed back then ?   

[Akwasi100 1]

6 hours ago, NigeriaorBust said:

  Their age at the time of marriage is the key to if your wife can petition for them ,   Is your wife a US citizen , if so the children needed their own petitions.   Where they filed back then ?   

We married in 2012 and they were 16 and 13 yrs. So does this mean when I immigrate and petition for them they will qualify under IR 2 even though they are now over the age limit 

[NigeriaorBust 4,087]

  Is your wife a citizen or a permanent resident  

[Akwasi100 1]

2 minutes ago, NigeriaorBust said:

  Is your wife a citizen or a permanent resident  

She is a permanent resident 

[NigeriaorBust 4,087]

  This is probably not a good thing .   At the time of your original interview it seems that both your children could have come.  Now your oldest has aged out and needs his own petition and your younger may be hitting that dead line.  Your wife should immediately file for the older as the adult son of a LPR but the with is very long.  Can your wife file for citizenship soon ?  

[Akwasi100 1]

44 minutes ago, NigeriaorBust said:

  This is probably not a good thing .   At the time of your original interview it seems that both your children could have come.  Now your oldest has aged out and needs his own petition and your younger may be hitting that dead line.  Your wife should immediately file for the older as the adult son of a LPR but the with is very long.  Can your wife file for citizenship soon ?  

She has confirmed she is US citizen..I easily confused about the citizen and LPR stuff. So how does her being a citizen affect the situation now?

[Hypnos 6,579]

If your wife is a US citizen then under the Child Status Protection Act their ages are considered frozen as of the date their I-130s were filed, so they will remain eligible for immigrant visas even if they turn 21.

Edited May 19, 2019 by Hypnos

[Akwasi100 1]

43 minutes ago, Hypnos said:

If your wife is a US citizen then under the Child Status Protection Act their ages are considered frozen as of the date their I-130s were filed, so they will remain eligible for immigrant visas even if they turn 21.

Oh okay. Their petitions have not been filed yet. My wife only petitioned for me first because her finances were not enough to support my kids at that time but  I indicated on the Ds 260 they would join me at a later date but they were both below 21 then

[Hypnos 6,579]

They each need their own petitions if she's a US citizen. Theirs must be filed before they turn 21 to preserve their eligibility as immediate relatives. 

 

The 18yo (now 23) has already aged out. The 15yo (now 20) will remain eligible if their I-130 is received and accepted for processing by USCIS before they turn 21.

Edited May 19, 2019 by Hypnos

[JFH 12,195]

*~*~*moved from “IR-1/CR-1 spouse visa process and procedures” to “bringing family members of USCs” - question about IR-2 requirements*~*~*

[geowrian 22,339]

The USC petitioner can file for the stepchildren at any time since the marriage was prior to age 18 for both of them. This would be the quickest way for them to immigrate to the US.

That said, the 23 year old is aged out into F1 category already. The processing time/delay on your case has no impact since there was no petition for them.

The 20 year old can be petitioned by them now to preserve IR-2 category even if they turn 21 during the process (so long as they seek to obtain a visa within a year of becoming eligible to do so).

 

If you file for either child after coming to the US , they will both be aged out into F2B category. ETA: ~7-10 years.

[Akwasi100 1]

1 hour ago, geowrian said:

The USC petitioner can file for the stepchildren at any time since the marriage was prior to age 18 for both of them. This would be the quickest way for them to immigrate to the US.

That said, the 23 year old is aged out into F1 category already. The processing time/delay on your case has no impact since there was no petition for them.

The 20 year old can be petitioned by them now to preserve IR-2 category even if they turn 21 during the process (so long as they seek to obtain a visa within a year of becoming eligible to do so).

 

If you file for either child after coming to the US , they will both be aged out into F2B category. ETA: ~7-10 years.

So if I get u right it will be quicker if my wife files for them than I do after I immigrate to the US?

[geowrian 22,339]

1 hour ago, Akwasi100 said:

So if I get u right it will be quicker if my wife files for them than I do after I immigrate to the US?

Yes.

 

While trying not to jinx things, I do want to point out that in the ~6-7 years it takes for your wife to petition the elder son, it's possible the marriage would end and she may no longer wish to continue the process. In which case, having a petition from you instead (or a petition from each of you - this is perfectly fine to do) has its merits as well.

For the younger son, her petitioning would take much less time (~12-16 months vs ~7-10 years for you).