IR-2 Minor child pregnant and aging out

[KikoandJudy 1]

As a US Citizen I filed for IR-2 visas for my two step-daughters.  The visas were approved all the way through NVC and, along with many others, the pandemic

stopped everything before we got an interview date at Ciudad Juarez.  I filed an expedited request for their interview this last summer and my reason was

school was to start here in August and both of them do not speak any English and needed to get in their classes as soon as possible especially because

they would be promptly immersed in both English and Spanish classes.  Delaying that would put them back in their education possibly one year.

We were denied the visa even though I read that starting school was one reason they would consider as to expedite.  My oldest step-daughter is aging

out in February 2021 as she will be 18 years old.  We just learned yesterday that she is two months pregnant.  With the total situation I would like to

file another expedited request because she will be aging out in approximately four months.  I believe, from reading other posts, that pregnancy is not

a reason for expediting although she and the baby would get better quality care in the US health system.  Could I please get opinions from others

what I should do and what I should list as an expedited reason that they might approve it this time.  In addition she is current in the home with her

biological mother which doesn't care for the girls and the 17 year old tried to commit suicide 2 years ago.

[geowrian 22,335]

1) IR-2 never ages out. CSPA freezes their age back at the time of I-130 filing.

2) The cutoff age is 21, not 18.

3) There is no harm asking for an expedite, but have a plan B ready.

 

NOTE: If the child is born before she gets the visa, the child will not qualify for a derivative visa. IR-2 has no derivatives. So there is a real possibility of not being able to immigrate with the child if that happens.

Technically she can cross the border to activate the immigrant visa, file an I-130 for the child, then wait the ~1.5-2.5 years abroad for the child to get a visa. She should obtain a re-entry permit to avoid abandoning her permanent residency while being abroad for so long, as well as maintain any ties to the US that she can (including filing US taxes).

 

NOTE 2: It would be wise to have medical records that the 17 year old's past suicidal actions are no longer a current issue + any treatment she has received to address the issue. Being a threat to oneself or others is a medical inadmissibility.

Edited September 12, 2020 by geowrian

[SusieQQQ 11,584]

Some important factors:
 

1. 18 years is not aging out, 21 is aging out

2. In any case, IR2 children do not age out - age is locked when petition is filed

3. IR visas cannot have derivatives. If the baby is born before the pregnant one immigrates, she will have to sponsor the baby under F2A.

 

Edit: sorry for inadvertent repeat of these points, geowrian posted while I was typing!

 

 

Edited September 12, 2020 by SusieQQQ

[KikoandJudy 1]

 

 

 

 

 

 

 

 

Thank you so much for your answer.  So, as I understand, I can't file an expedited visa because she would not be considered aging out until she turns 21?

The matter about the child - I hadn't had time to think about the situation if she gives birth before she gets her visa and enters the states.  That could

be a real problem - even a more pressing reason to get the interview expedited.  Do you think we could use that as a reason to expedite?  She wouldn't be a public charge when she comes to the US because before Covid 19, her father put both of the children on his insurance plan.  

 

Does anyone have any information when the Ciudad Juarez embassy is going to open?  The way it's going her child may be a toddler before she gets an

interview!!

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[SusieQQQ 11,584]

Unfortunately Uscis has clearly defined criteria for expedite. If only the “hassle factor” of a child born too late to be added to a visa was one of them! 
 

The criteria are below,  unfortunately I can’t see that your case fits into any of them.  Not sure if a lawyer may have some twist that can be used.

 

https://www.uscis.gov/forms/forms-information/how-to-make-an-expedite-request
 

USCIS may consider an expedite request if it meets one or more of the following criteria:

• Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to:
  1. File the benefit request or the expedite request in a reasonable time frame, or
  2. Respond to any requests for additional evidence in a reasonably timely manner;
• Urgent humanitarian reasons;
• Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
• Clear USCIS error.

[aaron2020 11,651]

Sorry, pregnancy is not a valid reason for an expedite.  

If the baby is born before she can immigrate, she will have to immigrate alone.  Once she enters the US to receive her green card, she can file a new I-130 for her child.  She will also want to file for a reentry permit allowing her to leave the US to go live with her child while the case for the child is processed.  

 

Best of luck.

[Boiler 43,434]

No harm going for an expedite, i always recommend it, just do not assume you will get it.ather is in  the US, has he oetitioned fr her.

 

I would only add the father could have a say if the baby is born in Mexico.

 

Presumably her father is in the US? Has he petitioned for her?

[Orangesapples 1,954]

10 hours ago, Boiler said:

No harm going for an expedite, i always recommend it, just do not assume you will get it.ather is in  the US, has he oetitioned fr her.

 

I would only add the father could have a say if the baby is born in Mexico.

 

Presumably her father is in the US? Has he petitioned for her?

It looks like OP is the step mom. Are you saying that the father can also petition her as a LPR? 

[SusieQQQ 11,584]

20 minutes ago, Orangesapples said:

It looks like OP is the step mom. Are you saying that the father can also petition her as a LPR? 

An LPR can petition unmarried children, but it takes longer and the categories are currently banned for visa issuance so it generally makes more sense for the USC step parent to petition.

 

Not clear from the first post if the father has his green card yet though.

Edited September 12, 2020 by SusieQQQ

[Boiler 43,434]

Not clear at all, need more info.

[KikoandJudy 1]

3 hours ago, Boiler said:

Not clear at all, need more info.

Thanks to all that replied.  More information is that, as their step-mother I filed for the IR-2 visa for them to enter the US.  My husband came over almost four years ago and received his permanent residency a couple years ago.  Next year he will be able to apply for citizenship.  I applied for the visa because I read that if an LPR applied it was a longer process.  The biological mother of the girls would not sign off on the passport for the girls for over two years and that is why it has taken so long in addition to the Covid-19 situation,  The bio mother is a terrible mother who works as a prostitute and hardly is ever home for the girls and the girls have witnessed different men enter and exit over the years.  There is also another step-daughter who was kicked out of her mother's house when she was 15 years old and forced to live on the street.  She is now 22 years old and we got her a visa over two years ago and is now living in the US.  The bio mom is threatening now to kick the 17 year old to the street now which would be a horrible situation since she is now carrying a baby and would have no way to feed herself or the baby.  I feel this is a humanitarian crisis but, unfortunately, it doesn't fit the mold of reasons to expedite the visa.

[aaron2020 11,651]

20 minutes ago, KikoandJudy said:

Thanks to all that replied.  More information is that, as their step-mother I filed for the IR-2 visa for them to enter the US.  My husband came over almost four years ago and received his permanent residency a couple years ago.  Next year he will be able to apply for citizenship.  I applied for the visa because I read that if an LPR applied it was a longer process.  The biological mother of the girls would not sign off on the passport for the girls for over two years and that is why it has taken so long in addition to the Covid-19 situation,  The bio mother is a terrible mother who works as a prostitute and hardly is ever home for the girls and the girls have witnessed different men enter and exit over the years.  There is also another step-daughter who was kicked out of her mother's house when she was 15 years old and forced to live on the street.  She is now 22 years old and we got her a visa over two years ago and is now living in the US.  The bio mom is threatening now to kick the 17 year old to the street now which would be a horrible situation since she is now carrying a baby and would have no way to feed herself or the baby.  I feel this is a humanitarian crisis but, unfortunately, it doesn't fit the mold of reasons to expedite the visa.

Your pregnant stepdaughter has two paths to immigrate to the US.  You can pursue both.

 

1.  Continue with the IR-2 petition and hope that she can get a visa before the child is born.  If she does great, she can give birth in the US.  If she doesn't, then you go to the backup plan below.  

 

2.  Have your LPR husband (DO THIS BEFORE HE BECOMES A US CITIZEN) file an F2a case TODAY for his daughter.  Derivative beneficiaries are allowed in F2a cases.  She would be allowed to immigrate with her baby as long as the biological father is okay with it.  This case will take about a year or two.  Get the clock running NOW rather than let the daughter immigrate on the IR-2 without her kid and have to turn around to file an F2a case for her baby.   If your husband becomes a USC after he files an F2a case, it will not affect the case since she can retain the F2a category. 

Best of luck.

Edited September 13, 2020 by aaron2020

[Free Man 115]

I don't think Education purpose is a genuine factor. I tried to expedite for my 11yr son on the basis that I want him to attens day 1 school and lot of stories but they rejected my request 

[HRQX 4,145]

2 hours ago, aaron2020 said:

2.  Have your LPR husband (DO THIS BEFORE HE BECOMES A US CITIZEN) file an F2a case TODAY for his daughter.  Derivative beneficiaries are allowed in F2a cases.  She would be allowed to immigrate with her baby as long as the biological father is okay with it.  This case will take about a year or two.  Get the clock running NOW rather than let the daughter immigrate on the IR-2 without her kid and have to turn around to file an F2a case for her baby.   If your husband becomes a USC after he files an F2a case, it will not affect the case since she can retain the F2a category.

Can't retain F2A when naturalization of petitioner makes child into IR-2. CSPA opt-out provision is for F2B cases that become eligible for F1 to retain F2B if they opt-out. See 8 USC § 1154(k): "Procedures for unmarried sons and daughters of citizens. (1)In general Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter’s classification as a family-sponsored immigrant under section 1153(a)(2)(B) of this title, based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 1153(a)(1) of this title. (2)Exception Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter’s eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place. (3)Priority date Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date. (4)Clarification This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization."

Edited September 13, 2020 by HRQX

[Dalila Gonzalez 49]

Try and get an emergency appointment, aging out qualifies you for that...or at least it should. I have been seeing several people saying they got emergency appointments for k1 visas and stuff so I don’t see why you wouldn’t be able to get one for your daughter