Green card for children while pending AOS

[Boiler 43,429]

Presumably the Mother would be a willing participant.

[Gomast 65]

9 minutes ago, Lil bear said:

So they entered legally but have now overstayed..but you left the USA then and reentered  on a K1??  Were they listed on your more recent K1 and DS160 ? 

I left the US in May 2017. When I reentered on July 2019 with the K-1, I did not list my children on the K1, because at that time the children were already living in the US with their mom and she was supposed to take care of their immigration status.

[geowrian 22,335]

4 minutes ago, Gomast said:

I left the US in May 2017. When I reentered on July 2019 with the K-1, I did not list my children on the K1, because at that time the children were already living in the US with their mom and she was supposed to take care of their immigration status.

Define "did not list them".

Were they listed on the I-129F (petition)?

Were they listed on the DS-160 (visa application)?

[Gomast 65]

16 minutes ago, geowrian said:

Okay. So you are married.  You were divorced.

 

So they came in on an H-4 visa and subsequently overstayed.

 

Either your USC spouse can petition for them or their USC mother's spouse can petition for them. Either USC stepparent is fine.* The process starts by filing an I-130 + I-485 packet to petition and adjust status concurrently.

You cannot personally petition them until you have a green card, and overstay is not ignored for that immigration category (F2A) anyway.

They would not be part of your AOS process.

 

I'll defer to others on how permission for the children to immigrate works for this case. I would assume she still needs to sign off

 

*I'm assuming the children are under 18. If 18 or older, there are more restrictions that may apply depending on who petitions for them.

* I did not overstay. My children did overstay as a result of their mom's actions.

** The divorce order states that the children shall not leave the US until they are 18. So I think that this could satisfy the permission requirement.

*** Note that the order is from a state court, not a federal court, so it has no affect over the immigration system which is federal.

**** The children are 11,13.

 

[Lil bear 3,831]

7 minutes ago, Gomast said:

* I did not overstay. My children did overstay as a result of their mom's actions.

** The divorce order states that the children shall not leave the US until they are 18. So I think that this could satisfy the permission requirement.

*** Note that the order is from a state court, not a federal court, so it has no affect over the immigration system which is federal.

**** The children are 11,13.

 

I’m really confused. 
You left in May 2017 ... they entered in November 2017 ? But if you left in May.. and were no longer in the US complying with  the H1b requirements .. and her H4  visa was tied to your valid H1b visa .. could it be determined that  they did not lawfully enter the US at that time ? This is tangled .. very tangled ., to me anyway ... 

[Gomast 65]

5 minutes ago, geowrian said:

Define "did not list them".

Were they listed on the I-129F (petition)?

Were they listed on the DS-160 (visa application)?

This is actually a good point.

On form I-129F, I listed them on page 7, part 8, item 40a.

 

On DS-160, under "Do you have any immediate relatives, not including parents in the U.S.?" I listed my kids. I also listed their names under : "Do you have any children?".

"Is this child taveling to the United States with you?" Answer: No

"Is this child taveling to the United States at a later date to join you?" No

 

On form I-485, I listed them on page 8, part 6, item 7a. However, for the question: "Is this child applying with you?" I selected "No".

 

[Lil bear 3,831]

3 minutes ago, Gomast said:

This is actually a good point.

On form I-129F, I listed them on page 7, part 8, item 40a.

 

On DS-160, under "Do you have any immediate relatives, not including parents in the U.S.?" I listed my kids. I also listed their names under : "Do you have any children?".

"Is this child taveling to the United States with you?" Answer: No

"Is this child taveling to the United States at a later date to join you?" No

 

On form I-485, I listed them on page 8, part 6, item 7a. However, for the question: "Is this child applying with you?" I selected "No".

 

Ok so that part is good. You declared them as required. One requirement for AOS by their stepmom is that they entered legally .. and you may need legal advice to determine that .. hoping others with deeper knowledge of the workings of H1b/H4 visas can give some answers here .... sounds like your ex wife and children used the H4 ... which hadn’t passed its expiry date .... to re enter the US.. but she was no longer your wife and you were no longer in the US on your H1b visa ... 

Edited July 29, 2020 by Lil bear

[geowrian 22,335]

2 minutes ago, Gomast said:

This is actually a good point.

On form I-129F, I listed them on page 7, part 8, item 40a.

 

On DS-160, under "Do you have any immediate relatives, not including parents in the U.S.?" I listed my kids. I also listed their names under : "Do you have any children?".

"Is this child taveling to the United States with you?" Answer: No

"Is this child taveling to the United States at a later date to join you?" No

 

On form I-485, I listed them on page 8, part 6, item 7a. However, for the question: "Is this child applying with you?" I selected "No".

Ok good. That was all correct.

 

Just now, Lil bear said:

Ok so that part is good. You declared them as required. One requirement for AOS by their stepmom is that they entered legally .. and you may need legal advice to determine that .. hoping others with deeper knowledge of the workings of H1b/H4 visas can give some answers here .... 

Shouldn't be an issue. It's the same as any other overstay (except there is no unlawful presence accrued under age 18). If they are petitioned by a USC parent/stepparent, then the overstay won't be an issue.

[Gomast 65]

1 minute ago, Lil bear said:

I’m really confused. 
You left in May 2017 ... they entered in November 2017 ? But if you left in May.. and were no longer in the US complying with  the H1b requirements .. and her H4  visa was tied to your valid H1b visa .. could it be determined that  they did not lawfully enter the US at that time ? This is tangled .. very tangled ., to me anyway ... 

Yes, it was a hectic period. I'll try to clarify:

I left the US with the children and with my ex on May 2017. We divorced abroad.

In November 2017 the children and ex returned to the US. Correction: I just recalled that my children and wife re-entered to the US in Nov 2018 with a R-1 visa from her previous employer. She was terminated from her job and lost her R-1 while she was in the US.

 

 

 

[Lil bear 3,831]

1 minute ago, geowrian said:

Ok good. That was all correct.

 

Shouldn't be an issue. It's the same as any other overstay (except there is no unlawful presence accrued under age 18). If they are petitioned by a USC parent/stepparent, then the overstay won't be an issue.

So the use of the not yet expired H4 was legal even though she was no longer the spouse and he was no longer using the H1b? 

[Lil bear 3,831]

Just now, Gomast said:

Yes, it was a hectic period. I'll try to clarify:

I left the US with the children and with my ex on May 2017. We divorced abroad.

In November 2017 the children and ex returned to the US. Correction: I just recalled that my children and wife re-entered to the US in Nov 2018 with a R-1 visa from her previous employer. She was terminated from her job and lost her R-1 while she was in the US.

 

 

 

That sounds better. As Geowarian has noted, AOS looks possible by your wife as stepmom .. I hope you can get it sorted 

 

[Gomast 65]

3 minutes ago, Lil bear said:

So the use of the not yet expired H4 was legal even though she was no longer the spouse and he was no longer using the H1b? 

They actually used the mom's R-1 visa (the children were R-2), and not H-4.

The ex had R-1, and left the US with it on May 2017. The children had H-4 on May 2017.

I know that the ex returned to the US on Nov 2017 with the R-1, and she probably obtained R-2 for the children, although I am not exactly sure about the children.

Regardless, I know that they overstayed their visas.

[Gomast 65]

4 minutes ago, Lil bear said:

That sounds better. As Geowarian has noted, AOS looks possible by your wife as stepmom .. I hope you can get it sorted 

 

Thank you so much. My wife will try to submit the I-130 + I-485 packet and we'll see what happens. I really appreciate your help!

[Lucky2Lucky 2,526]

5 hours ago, Gomast said:

Thank you so much. My wife will try to submit the I-130 + I-485 packet and we'll see what happens. I really appreciate your help!

Also please don’t forget to update your VJ timeline- you only have the k1 as still pending and nothing about the i485. This would have reduced some of the confusion.

[Gomast 65]

2 hours ago, Luckycuds said:

Also please don’t forget to update your VJ timeline- you only have the k1 as still pending and nothing about the i485. This would have reduced some of the confusion.

Timeline updated. Thank you