HELP!!! Son of a I-485 Adjust of Status

[shinus]

I am married with an american citizen and I will post my forms (I-485 and others) on next monday but I still have a doubt... My son is 6 and still in Brazil.He already has a visitor visa and he is comming on July, 2009. Do you think he is gonna have any problem when he try to get in US just because his mother has a immigration process? Is that a problem if I start his I-130 and I-485 in july? Please help me!!!

[bestpal]

What's your status? were you on visitor visa here then married a USC?

You son may or may not have issues when entering. It all depends on the POE officer looking at his visa and if the system pulls up something about you then most likely he'll get denied for entry. If nothing on the sytem about your case when you son is entering at POE, then he should able to pass POE.

You can start his I-130 as soon as he left the US so he can still visit you prior to filing the I-130 becasue after the I-130 is file, there's a high chance of denying entry at POE for immigrate intent. You cannot file AOS while he's in the US. He'll have to go through consular processing by going back to Brazil unless you become a USC. Currently, the waint time to bring your son over is about 4-6 yrs.

[Jackolantern]

Originally Posted by shinus

Do you think he is gonna have any problem when he try to get in US just because his mother has a immigration process? Is that a problem if I start his I-130 and I-485 in july? Please help me!!!

Don't you see the conflicts embedded in those 2 questions? You want to bring your son in with a tourist visa and then file I-485, while Immigration turns away many people with tourist visas because of their apparent intention to file I-485 after entering with a tourist visa.

If you did AOS after entering the US with a tourist visa, Immigration will expect you to attempt the same for your son, so they will send him back and terminate his visa.

[TheRealCanadian]

Originally Posted by bestpal

He'll have to go through consular processing by going back to Brazil unless you become a USC. Currently, the waint time to bring your son over is about 4-6 yrs.

Can't the step-parent petition as an Immediate Relative?

[bestpal]

Originally Posted by TheRealCanadian

Can't the step-parent petition as an Immediate Relative?

You mean the USC stepfather? but the mom only has GC...not sure if they could do that.

[TheRealCanadian]

Originally Posted by bestpal

You mean the USC stepfather? but the mom only has GC...not sure if they could do that.

Why not? That's how the children of an alien spouse come to the US, and it's what the K-4 visa is for.

[Jackolantern]

Originally Posted by bestpal

You mean the USC stepfather? but the mom only has GC...not sure if they could do that.

If a US citizen sponsors their noncitizen spouse, the noncitizen's children can get green cards as derivative beneficiaries.

[Jackolantern]

Originally Posted by shinus

Is that a problem if I start his I-130 and I-485 in july? Please help me!!!

Yes it is a problem and you could have your I-485 rejected for immigration fraud if you file his I-485 so quickly after he arrives in the US. You are even possibly jeopardizing your own case by filing I-485 for yourself after arriving in the US on a tourist visa (if that is how you arrived). Leave your son in Brazil and use consular processing for him if you want to avoid big problems. Ideally, you should also go back there and pursue consular processing yourself, if you entered the US with a short-term nonimmigrant visa. B-2 visas are not supposed to be used as a transition to the green card.

[bestpal]

Originally Posted by Jackolantern

If a US citizen sponsors their noncitizen spouse, the noncitizen's children can get green cards as derivative beneficiaries.

Unless on her original I-130 that her son was included in the petition otherwise, how can her son get derivative beneficiaries?

[TheRealCanadian]

Originally Posted by Jackolantern

If a US citizen sponsors their noncitizen spouse, the noncitizen's children can get green cards as derivative beneficiaries.

No. There are no derivative beneficiaries for an Immediate Relative. The US citizen can sponsor their stepchildren as Immediate Relatives.

[bestpal]

Originally Posted by TheRealCanadian

No. There are no derivative beneficiaries for an Immediate Relative. The US citizen can sponsor their stepchildren as Immediate Relatives.

You are correct, only GC petitioner petition their immediate relative has derivative beneficiaries for their children.

[Jackolantern]

Originally Posted by TheRealCanadian

No. There are no derivative beneficiaries for an Immediate Relative. The US citizen can sponsor their stepchildren as Immediate Relatives.

So what is the K4 visa for? Isn't that essentially a derivative visa? The children can't get a K4 if their parent isn't sponsored, can they? And if the I-751 is rejected, don't the noncitizen children of the noncitizen spouse also have their green cards terminated? Maybe "derivative beneficiary" is not the technically correct term, but if you're saying the existence of and result of the noncitizen spouse's case has no relation to the approval or denial of the noncitizen children, that is news to me.

[TheRealCanadian]

Originally Posted by Jackolantern

So what is the K4 visa for? Isn't that essentially a derivative visa? The children can't get a K4 if their parent isn't sponsored, can they?

The K-4 is a non-immigrant visa.

The point I am making is that in this case, for the GC, the US citizen stepfather can file an I-130 on behalf of the OP's child in Brazil, for the child to get a GC. The mother need not file under FB2A. Since there are no derivative beneficiaries for an IR immigrant visa, the stepfather must file a second I-130 for the child.

[shinus]

So...I should file the form I-130 and the I-485 for my son and leave him in Brazil until is processed...

[TheRealCanadian]

Originally Posted by shinus

So...I should file the form I-130 and the I-485 for my son and leave him in Brazil until is processed...

No. Your husband should file an I-130. No I-485 can be filed for your son, since he is not physically present in the US.

[shinus]

He should file only the I-130 for him and I wiil be able to file the I-485 when he gets her in the US.. Is that right?

[TheRealCanadian]

Originally Posted by shinus

He should file only the I-130 for him and I wiil be able to file the I-485 when he gets her in the US.. Is that right?

No. The I-130 will eventually lead to a consular interview in Brazil. At this interview he will receive an immigrant visa to come to the US. No I-485 is required.

[shinus]

Thanks for the reply!!!!... Do you know how long normally the visa it will be available on the Brazilian Consulte after hie files the I-130?

[bestpal]

Unless your son can come to the US with a vistor visa then your husband can file I130 and I485 all together to adjust your son's status while in the US, otherwise go with the process below.

He'll have to file I-130 for consular processing. The average wait time to get I130 approved is about 2-6 month (depends on which service center). The case will then transferred to NVC (national visa center) for further processing.

- file I-130 to the USCIS service center designated to your area
-will need copy of your husband's naturalization cert or copy of birth cert and/or copy
of his U.S. passport
-copy of your marriage certificate
-copy of your GC
-copy of your son's birth cert
-$355 USD

When the case is approved and transferred to NVC. NVC will send the following to you and also to your son:
-DS-2032 choic of agent form *this is just to designate who will receive future mails
from NVC.* the best person is the petitioner with a US address
complete this and send it back to NVC
-After NVC received the DS-2032, it will notify you to submit $76 for affidavit of
support review fee.
-You paid the fee online then download and complete the affidavit of support.
Send the affidavit of support back to NVC
-NVC will notify you to pay IV (immigration visa) bill $400.
-You paid the IV bill online then download and complete the DS-230 form.
-Send your completed DS-230 form to NVC alog with the civil documents listed on the
NVC page.

NVC will notify you of any missing documents. If no missing documents, your case is completed and NVC will schedule an immigration visa interview for your son at the US embassy in Brazil. After the interview is set, NVC will notify you and your son with an interview date, time and place along with instructions on where to get medical exams.

Your son completed the immigration interview and obtained a immigration visa. You buy him a airlinie ticket then he can fly over.

Hope this will give you some ideas on how the AOS and consular processing goes.