Filing for my wife's child

[Joey Y Ana 2]

First of all hello and thanks to all who takes the time to read this. I am about to file my wife's I-130 petition. She is a Mexican citizen and I am a U.S. citizen. She has a daughter that I have noted as a relative on the petition. In the I-130 instructions it states that unmarried children under the age of 18 do not require a separate petition. Has anyone any first hand experience in this?

 

To make matters more complex...my wife currently has a custody case that she just started. This will allow her to immigrate with her daughter. Right now she cannot because the daughter's biological father will not sign the legal documents to allow for her daughter to travel out of the country. Not to mention he has never been in either one of their lives since he's learned of the pregnancy. So....my concern is....if I can put my stepdaughter on my wife's petition but the custody case is not seen through yet will that just be a wasted effort. Should we wait until the custody case is over? Thanks.

[geowrian 22,335]

10 minutes ago, Joey Y Ana said:

In the I-130 instructions it states that unmarried children under the age of 18 do not require a separate petition. Has anyone any first hand experience in this?

It says no such thing. Care to share a link?

 

I'm assuming you are confusing either or both 2 other items:

1) A child who's parents married before turning 18 can be petitioned by the stepparent.

2) Family preference categories allow derivatives of qualifying children (under 21 and unmarried). Note that your cases are immediate relative categories (IR-1/CR-2 and IR-2/CR-2), not family preference.

 

tldr: You must file a petition for each beneficiary.

 

Expect roughly 1.5 years or longer for Mexico right now. A normal spousal case is taking around a year or longer, and CDJ is backed up many, many months right now. You can delay the process for years if you want, but you can't speed it up. Better to start now and deal with the custody issue in the meantime.

Edited July 12, 2019 by geowrian

[Just Paul 4,591]

You can file the I-130 for the stepdaughter. For a spousal visa there are no derivative petitions.  Pay each petition with a seperate check.

 

The custody needs to be resolved prior to the interviews.  Since CDJ is backlogged you will have plenty of time to get that worked out.

[Joey Y Ana 2]

Well, it looks like you are correct and I misread the instructions. Thanks for the advice.

[TBoneTX 43,058]

Thread is moved from the K-3 Process forum to the CR-1 Process forum.

[Joey Y Ana 2]

Thanks to all for all of the valuable information. This brings up another question...If the child does not have a passport, can I proceed with filing an I-130 form? The biological father is not willing to sign permission for her to have one. That is the reason for the custody battle. Thanks in advance.

[geowrian 22,335]

On 7/13/2019 at 6:04 PM, Joey Y Ana said:

Thanks to all for all of the valuable information. This brings up another question...If the child does not have a passport, can I proceed with filing an I-130 form? The biological father is not willing to sign permission for her to have one. That is the reason for the custody battle. Thanks in advance.

Yes. The I-130 stage doesn't require a passport (although it requests the passport number if one was issued).