Stepkids under 21, VWP to USA but stuck... need help for AOS

[Cam L. 0]

Hello everyone!

 

My wife came to the USA on a K-1 visa, we AOS'd, and are now waiting for her removal of conditions I-751 to be granted. We're about 4 months in, that's squared away and now we have a situation whereas I can't find a straight forward answer or guide

 

I have two stepchildren through the wife that are under 21 and came over to the US with her ex-husband to visit a few museums in NY. They entered from South Korea under the VWP. The ex-husband is a filmmaker and was dispatched to another country and since the children were here with the wife & I in the states, he essentially left them to us. They can't go back to their country because there is no guardian there.... the only choice we have is for them to become lawful permanent residents. As of today we are all living together.

 

I've looked into this and the only people that can AOS while being here under the VWP is immediate relatives (stepchildren). There is no step by step guide for this sort of situation and I don't know what to do exactly. I understand I will of course need to file a I-485, but what else? Can anyone give me a quick rundown of how I should execute this? They have about a month left before they overstay so I have to get this done ASAP. There's zero fraud intent here, believe me I wasn't mentally ready for this at all nor the wife but there are no options so we must make it work..

 

Also how would we go at getting them an SSN? With my wife we went to the social security office but I can't even remember what exactly let us do that. My brain's a little exhausted from this and work, sorry :/ We just need help

[Boiler 43,437]

How old were the children when you married?

 

SSN is a loooong way away, EAD or GC is needed.

[Cam L. 0]

We married in 2019, kids as of today are 10 and 13. I was wondering about the SSN to make it easier to add them to our health insurances and enrolling them in school whenever it is allowed. Not having an ssn makes living here sort of tricky

[Boiler 43,437]

You can file for them as the USC, you can get an ITIN.

[aaron2020 11,651]

12 hours ago, Cam L. said:

We married in 2019, kids as of today are 10 and 13. I was wondering about the SSN to make it easier to add them to our health insurances and enrolling them in school whenever it is allowed. Not having an ssn makes living here sort of tricky

You can enroll them in school immediately.

 

Make sure to file for their EAD when adjusting their status.  That will help get their SSN.

[saksnoot 31]

File I-130 and I-485 concurrently (they are eligible for this), and also file I-131 for EAD (to get SSN) and for AP as well. They’ll be in legal status while their case is pending. You can enroll them in school right now, and if there is a need, you can get them an ITIN while waiting for the SSN. Once AP is granted, you (or your spouse or both) can travel with them to get any belongings they may have left behind.

 

The only complication here is that you’ll have to show that there was no immigrant intent when they came under VWP, and that very much seems to be the case. Collect any documentation you have that shows why they came to the US, and that it was with their birth father. And any documentation that he’s left the US and left them in your care.

 

If your spouse’s divorce with her ex has stipulates anything about custody, be sure that you are ironing that out if need be.

 

Personally, I think your case is possible to DIY as long as you can put together a good string of documentation for why they need to live with you in the US now. An immigration attorney could make the situation smoother though. Whether that’s what you want to do is your call. 

[Boiler 43,437]

Immigrant intent was determined on entry.

[Dashinka 23,247]

Do they still need to get the sign-off from the natural father to AOS?

[Cam L. 0]

bumping this up for another question, and thank you for all of the feedback.

 

is the i-130 needed for this process since they are already in the US? I mean, they cant go back because of the situation... there's no place for them to live. if they're here on VWP I'm assuming we'd just adjust them. for some reason I believe I have to do the I-130 but this process is a bit confusing and there's really no support on it although my searching ability isn't that great 😕

[Chancy 6,233]

On 10/11/2021 at 9:45 AM, Cam L. said:

is the i-130 needed for this process since they are already in the US?

 

Yes, I-130 must be filed concurrently with the I-485, as your stepkids may only adjust status on the basis of a petition from a USC or LPR parent.  Without a corresponding I-130, your stepkids' I-485 packages will be rejected.