Friend needs help

[milimelo 4,236]

2 hours ago, Steve & Erma said:

@jan22 are you saying that he will have to file an AOS and I-130 for each kid and his wife?

 

I know the oldest is 19 right now and the others are 2-4 years behind her. They were married August 2016 in Australia. I am not sure what your definition of custody is as they have lived together since before he and his wife married. I believe the adoption was finalized this year. Lastly, I believe the bio dad has nothing to do with the kids and I would assume he signed off. I will pose these questions to him and get back to you but I believe I am pretty close to my answers.

 

@jskibo can you answer Mike's questions, I am interested in that info as well.

None of them are currently LPRs. To become one, individual I-130 plus AOS is needed. 

[Steve & Erma 33]

21 hours ago, jan22 said:

         How old are the children?

          How old were they when their mother married him?

          When did the US citizen receive legal custody of the children?

          What was the date of the final adopton decree?

          Is there a biological father still in the picture and, if so, did he sign off for the adoption?

1. 19, 17, & 15

2. Married 2016 so 13, 11, & 9

3. They have always been in his custody

4. 12/2021

5. The bio dad was redacted from the birth certs by the Australian government, they took the bio dad's parental rights away.

 

@jan22 see I was close

[millefleur 5,039]

**One hijack post removed. If you have your own question, please start a new thread.**

 

VJ Moderation

[jan22 2,907]

7 hours ago, Steve & Erma said:

1. 19, 17, & 15

2. Married 2016 so 13, 11, & 9

3. They have always been in his custody

4. 12/2021

5. The bio dad was redacted from the birth certs by the Australian government, they took the bio dad's parental rights away.

@jan22 see I was close

Sorry, but they have not "always been in his custody" from a legal standpoint.  Marrying the mother of children does not usually grant legal custody of the children to the step-parent.  That must usually be done through the courts.  I'm guessing that legal custody was only obtained during the adoption.

 

Yes, he will need to file individual I-130's and I-485's for his wife and the three children.  The 19-year-old is too old to gain automatic citizenship under the Child Citizenship Act and it is unlikely that the 17-year-old will either.  All requirements under the CCA must be met prior to the child turning 18.  There is one major requirement missing -- the children being admitted to the US as Legal Permanent Residents.  After the I-130 and I-485 are approved, the two oldest children will become LPRs only, like their mother. 

 

However, there is also another problem with the 19-year-old -- based on their age now (19) and the finalization date on the adoption (2021), they were well over the age of 16 when the adoption was complete.  An adoption for immigration must be finalized prior to the child's 16th birthday.  On the other hand, a step-parent could petition for a step-child after 16.  Now that the adoption is complete, I don't think he can now petition as a step-father.  A good immigration attorney might know a way around this issue, but I don't know.  They definitely need a good immigration lawyer.

 

 

Edited December 18, 2022 by jan22

[Family 3,536]

The parental relationship established by the marriage to children’s mother is not invalidated by the subsequent adoption…so filing the four I-130 s and four Adjustments is the path…and it’s important he files before the oldest turns 21. 
 

He will likely not be ready before the new revision of I-485 effective 12/23/2022 . ..so heads up to the new public charge questions 
 

 

 

[Steve & Erma 33]

23 minutes ago, Family said:

The parental relationship established by the marriage to children’s mother is not invalidated by the subsequent adoption…so filing the four I-130 s and four Adjustments is the path…and it’s important he files before the oldest turns 21. 
 

He will likely not be ready before the new revision of I-485 effective 12/23/2022 . ..so heads up to the new public charge questions 
 

 

 

@Family He just has to file before her 21st birthday not have the immigration done before her 21st birthday right?

[Family 3,536]

9 minutes ago, Steve & Erma said:

34 minutes ago, Family said:

 

@Family He just has to file before her 21st birthday not have the immigration done before

Yes .

[jskibo 588]

On 12/17/2022 at 4:38 PM, Steve & Erma said:

@jan22 are you saying that he will have to file an AOS and I-130 for each kid and his wife?

 

I know the oldest is 19 right now and the others are 2-4 years behind her. They were married August 2016 in Australia. I am not sure what your definition of custody is as they have lived together since before he and his wife married. I believe the adoption was finalized this year. Lastly, I believe the bio dad has nothing to do with the kids and I would assume he signed off. I will pose these questions to him and get back to you but I believe I am pretty close to my answers.

 

@jskibo can you answer Mike's questions, I am interested in that info as well.

Yep the part I missed was my step-daughter was already here on a CR2. Didn't include a copy from f the green card with her passport app though. 

[Mike E 11,725]

2 hours ago, jskibo said:

Yep the part I missed was my step-daughter was already here on a CR2. Didn't include a copy from f the green card with her passport app though. 

 Without evidence she had LPR status I don’t understand why the passport agency issued her a passport.  

[manyfudge 273]

On 12/17/2022 at 9:55 PM, jan22 said:

However, there is also another problem with the 19-year-old -- based on their age now (19) and the finalization date on the adoption (2021), they were well over the age of 16 when the adoption was complete.  An adoption for immigration must be finalized prior to the child's 16th birthday.  On the other hand, a step-parent could petition for a step-child after 16.  Now that the adoption is complete, I don't think he can now petition as a step-father.  A good immigration attorney might know a way around this issue, but I don't know.  They definitely need a good immigration lawyer.

Yes, this is problematic.

 

He didn’t need to adopt them to petition on their behalf as a stepfather as he married the mother before any of them turned 16.

 

Yet, any child he adopted after they were 16 cannot be sponsored by him for a green card.

 

He messed up by not consulting an immigration lawyer first.

 

21 is important because overstay doesn’t matter for a child under 21.

 

 

 

 

[Steve & Erma 33]

1 hour ago, manyfudge said:

Yes, this is problematic.

 

He didn’t need to adopt them to petition on their behalf as a stepfather as he married the mother before any of them turned 16.

 

Yet, any child he adopted after they were 16 cannot be sponsored by him for a green card.

 

He messed up by not consulting an immigration lawyer first.

 

21 is important because overstay doesn’t matter for a child under 21.

 

 

 

 

@manyfudge So if the adoption finished in Dec 2021 and the kids were 14, 16, and 18 he won't be able to sponsor the last 2? The 16 year old by your sentence above wouldn't be eligible then correct? Do you know how he would proceed with those if that is in case the fact? If the mother was processed and became a PR would she be able to sponsor?

[Boiler 43,634]

As long as they are sing a LPR mother can file for them, they need to be in status to adjust

[manyfudge 273]

4 minutes ago, Steve & Erma said:

@manyfudge So if the adoption finished in Dec 2021 and the kids were 14, 16, and 18 he won't be able to sponsor the last 2? The 16 year old by your sentence above wouldn't be eligible then correct? Do you know how he would proceed with those if that is in case the fact? If the mother was processed and became a PR would she be able to sponsor?

I didn’t say that clearly.

 

He needs to consult a lawyer for the other 2 - the argument (no idea if there have been other cases) is that since he isn’t considered their father for immigration purposes, can he still be considered their stepfather (which is what he was before)? As their stepfather, he can sponsor them.

 

The mother can sponsor them BUT the

19 year old has accrued unlawful presence and the 17 year old too by the time she files for them so cannot adjust in the U.S. and subject to ban. As children of LPR, they are not forgiven for overstay (which they would be as children of USC).

 

He needs a lawyer, fast.  And file i130 and i485 for the wife and youngest child.