My husband has decided not to come

[assila 13]

I'm a permanent resident in USA. I'll be applying for citizenship next month. I've been waiting for my husband and 2 sons to arrive. It's been a long road. My husband and his mother think it's best that he doesn't come, but they said I can come get the kids. All our paperwork is done, we've been waiting for several months for an interview date to open. What do I need to do to inform immigration that he doesn't want to come? 

[SusieQQQ 11,584]

Hm, it’s a little tricky if you applied for your husband as principal and the kids as derivatives on the same petition, because then if he doesn’t come they need a new petition.  Probably easiest way to address this is file separate petitions for them ASAP, and once you are a USC, assuming they are under 21 these will upgrade  IR2 petitions (they would have lost derivative status anyway if you naturalized before they got visas as they type of petition changes if you’re a citizen). If you already petitioned them each separately (this is advised for people who will naturalize during the process) then it’s easier and you just let your husband’s petition lapse, but may need his permission for them to get visas. You should get documentation of at least joint custody anyway, as if the children are under 18 and come in on immigrant visas to live with you (need physical and legal custody) they will automatically become citizens too.

[assila 13]

39 minutes ago, SusieQQQ said:

Hm, it’s a little tricky if you applied for your husband as principal and the kids as derivatives on the same petition, because then if he doesn’t come they need a new petition.  Probably easiest way to address this is file separate petitions for them ASAP, and once you are a USC, assuming they are under 21 these will upgrade  IR2 petitions (they would have lost derivative status anyway if you naturalized before they got visas as they type of petition changes if you’re a citizen). If you already petitioned them each separately (this is advised for people who will naturalize during the process) then it’s easier and you just let your husband’s petition lapse, but may need his permission for them to get visas. You should get documentation of at least joint custody anyway, as if the children are under 18 and come in on immigrant visas to live with you (need physical and legal custody) they will automatically become citizens too.

I've been blindsided by this and I'm a bit panicked. I would like to try to get things worked out - I don't know. 

 

I understand most of what you've stated, but I'm a little unclear about the naturalization. Let's say we work things out and he decides to continue with the process. Should I hold off on naturalization until they get here? Thank you so much for your help!

[arken 4,197]

You still haven't clarified but it's very likely you filed i130 only for your spouse and your children will be immigrating as derivative beneficiaries. If this is the case:

 

If you naturalize before they immigrate, your sons cannot immigrate even if your spouse immigrates. You have to start new separate petitions (i130) for your sons.

 

If you remain a GC holder they all can immigrate together but the sons cannot immigrate without the father immigrating. You have to start new separate petitions (i130) for your sons if your spouse doesn't immigrate.

 

 

 

 

 

 

[assila 13]

13 minutes ago, arken said:

You still haven't clarified but it's very likely you filed i130 only for your spouse and your children will be immigrating as derivative beneficiaries. If this is the case:

 

If you naturalize before they immigrate, your sons cannot immigrate even if your spouse immigrates. You have to start new separate petitions (i130) for your sons.

 

If you remain a GC holder they all can immigrate together but the sons cannot immigrate without the father immigrating. You have to start new separate petitions (i130) for your sons if your spouse doesn't immigrate.

 

 

 

 

 

 

Yes, I filed I-130 with the father as the principal and the kids as derivatives. I did not expect to become a citizen until after their arrival, but the delays due to the pandemic have changed things.

 

Thank you for your help!

Edited October 14, 2021 by assila

[aaron2020 11,651]

57 minutes ago, assila said:

Yes, I filed I-130 with the father as the principal and the kids as derivatives. I did not expect to become a citizen until after their arrival, but the delays due to the pandemic have changed things.

 

Thank you for your help!

Ok.  The children can only immigrate IF 1) your husband immigrates AND 2) you do not naturalize.  If your husband refuses to immigrate, then the children can not come.  If you naturalize, then the children can not come.

Your husband should get his immigrant visa so the kids can get their immigrant visas.  All three of them come to the US to get their green card status.  Then your husband can leave on the next plane back home and forget that he has a green card.  

Tell him to get his immigrant visa so his kids can get theirs.  He doesn't have to keep his green card.  He can forget that he has it.  He should realize that it will be impossible for him to visit the US if he gives up his green card.  

 

Edited October 14, 2021 by aaron2020

[SusieQQQ 11,584]

1 hour ago, assila said:

I've been blindsided by this and I'm a bit panicked. I would like to try to get things worked out - I don't know. 

 

I understand most of what you've stated, but I'm a little unclear about the naturalization. Let's say we work things out and he decides to continue with the process. Should I hold off on naturalization until they get here? Thank you so much for your help!

 

52 minutes ago, assila said:

Yes, I filed I-130 with the father as the principal and the kids as derivatives. I did not expect to become a citizen until after their arrival, but the delays due to the pandemic have changed things.

 

Thank you for your help!

Maybe you can convince him to at least continue with the process to get his visa with the kids and bring them over, and then he can go back and let his green card lapse. This will be easier (for everyone except him, maybe, but if he has to attend an interview and get on a plane it’s not such a huge inconvenience surely ), and cheaper and much shorter than having to file new petitions for the kids.( It also basically gives him an option for up to a year if he changes his mind and decides to move after all.) Good luck, hope you work it out.

[assila 13]

20 minutes ago, aaron2020 said:

Ok.  The children can only immigrate IF 1) your husband immigrates AND 2) you do not naturalize.  If your husband refuses to immigrate, then the children can not come.  If you naturalize, then the children can not come.

Your husband should get his immigrant visa so the kids can get their immigrant visas.  All three of them come to the US to get their green card status.  Then your husband can leave on the next plane back home and forget that he has a green card.  

Tell him to get his immigrant visa so his kids can get theirs.  He doesn't have to keep his green card.  He can forget that he has it.  He should realize that it will be impossible for him to visit the US if he gives up his green card.  

 

Thank you. Good ideas.

21 minutes ago, SusieQQQ said:

 

Maybe you can convince him to at least continue with the process to get his visa with the kids and bring them over, and then he can go back and let his green card lapse. This will be easier (for everyone except him, maybe, but if he has to attend an interview and get on a plane it’s not such a huge inconvenience surely ), and cheaper and much shorter than having to file new petitions for the kids.( It also basically gives him an option for up to a year if he changes his mind and decides to move after all.) Good luck, hope you work it out.

Thank you. I'll bring this up to him.

[SusieQQQ 11,584]

29 minutes ago, aaron2020 said:

He should realize that it will be impossible for him to visit the US if he gives up his green card.  

Actually should be the opposite, if he formally renounces it with i407 it should make it easier not harder for him to get a visit visa as he has clearly demonstrated then that he does not have immigrant intent.

 

 

 

 

Edited October 14, 2021 by SusieQQQ

[aaron2020 11,651]

1 hour ago, SusieQQQ said:

Actually should be the opposite, if he formally renounces it with i407 it should make it easier not harder for him to get a visit visa as he has clearly demonstrated then that he does not have immigrant intent.

 

 

 

 

Not a guarantee that he would get a visitor visa.  

[Adventine 3,187]

I hope OP can work things out with her husband and that things get sorted in the long run.

 

I'm not familiar with the routine questions asked during interviews of spouses of permanent residents, but I'm really wondering:

 

Say that the husband decides to stay in his home country, but attends the immigrant visa interview for the sake of his kids.

 

Is it a problem if he already decided BEFORE the immigrant visa interview that he does NOT want to live in the States, but he attends the interview anyway and answers questions in such a way as to obtain the immigrant visa? I hesitate to call it misreprentation. Is it?

[HRQX 4,145]

11 minutes ago, Adventine said:

Is it a problem if he already decided BEFORE the immigrant visa interview that he does NOT want to live in the States

No. The Immigrant Visa can be issued without "immigrant intent."

 

Don't conflate the Nonimmigrant requirement of having a residence abroad which he or she has no intention of abandoning; see INA 214(b).

11 minutes ago, Adventine said:

Say that the husband decides to stay in his home country, but attends the immigrant visa interview for the sake of his kids.

*He'll also need to travel with the children to the US: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing/ceac-faqs.html

Accompany = This visa applicant is a derivative family member of the principal applicant and will immigrate to the United States at the same time as his/her parent or spouse.

Follow-to-Join = This visa applicant is a derivative family member of the principal applicant and will immigrate to the United States much later than his/her parent or spouse. For that reason, this applicant is not going to submit a visa application package now and will not attend a visa interview until he/she is ready to immigrate.

Edited October 15, 2021 by HRQX

[SusieQQQ 11,584]

1 hour ago, HRQX said:

He'll also need to travel with the children to the US: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing/ceac-faqs.html

Accompany = This visa applicant is a derivative family member of the principal applicant and will immigrate to the United States at the same time as his/her parent or spouse.

Yes, Aaron and I both mentioned he should travel with the kids but we should have made it explicit that it must happen.

[Adventine 3,187]

@HRQXthank you, that clarifies a lot.

 

[assila 13]

Thank you all so much for your help. My husband and I did a lot of talking, and he's going to come with our sons to give it a try. If we can't do it, he has the option of returning, or even staying here so he can still see the boys when he wants. Also, I'm happy you helped me with the naturalization issue, I almost made a very big mistake, by thinking if I became a citizen it might help to hurry the process. Whew!

 

A really big THANK YOU for all your help!