Help with rules on getting a GC as a Step Child

[41john]

My Step mother is a USC and is looking to sponsor me for a GC. My father married her before i was 18, however they are now divorced. I'm currently 20.

A) Can she still sponsor me for a GC as an Immediate Relative?
B) I turn 21 on April 5th 2011, Do we have to file before my 21st birthday? or complete immigration and move to the us before my birthday?
C) I have a partner, we are currently not engaged or married but what options do we have for her to come over? Can my step mother sponsor her too? or presumably does she need to get an employment GC/Visa (she is 25 BTW)?

 

[Jackolantern]

A) It is possible, but not automatic as you need to prove an ongoing relationship with the stepparent after the divorce. See page 5 of http://www.state.gov/documents/organization/86920.pdf

B) The petition needs to be filed before your 21st birthday to qualify as an Immediate Relative. But the whole process doesn't need to be completed before you turn 21.

C) Your stepmother cannot sponsor you or your spouse as an Immediate Relative if you get married, because you need to be unmarried and under 21 to qualify as Immediate Relative as the child of a USC. However it may be possible to qualify in the married children of USC category and have both you and your spouse immigrate, but that is family-based 3rd preference which takes 9+ years.

 

[41john]

C) Your stepmother cannot sponsor you or your spouse as an Immediate Relative if you get married, because you need to be unmarried and under 21 to qualify as Immediate Relative as the child of a USC. However it may be possible to qualify in the married children of USC category and have both you and your spouse immigrate, but that is family-based 3rd preference which takes 9+ years.

Many thanks for your answers, thats a great help. I didn't word my last question correct, I'll try again.

After I'm sponsored by my step mother and I receive a GC and immigrate, could I then get married and then my step mother sponsor my girlfriend (who'd then be my spouse)? I presume if she can, it would still fall into the family-based 3rd preference which takes 9+ years? So I would be better sponsoring once we get married as a GC holder, which takes 4-5yrs right?

What other options does my girlfriend have?

For example could she apply for an employment visa and if she got one, stay in the US with me whilst the 4-5yr process of her sponsorship for a GC through our marriage was accepted?

Another option if she is not allowed to do that (as the visa would be non immigrant status and the GC application would contradict that as its applying for immigrant status) would be if she gets an employment visa and then we wait five years I then become a US citizen, then I apply for her?

I have several ideas of how we could both immigrate but any help clarifying everything mentioned would be great (or other ideas on how we can both immigrate together at the same time).

 

[Jackolantern]

After I'm sponsored by my step mother and I receive a GC and immigrate, could I then get married and then my step mother sponsor my girlfriend (who'd then be my spouse)?

No. You can't get the green card in one category (Immediate Relative) and then have her join you in the married/over 21 category. Once you get the green card as an Immediate Relative, your spouse cannot get a derivative green card linked to you, she can only get a direct green card. But she has no direct relationship with your stepmother, so somebody else would have to sponsor her.

That somebody else could be you; you could sponsor her in the family 2A category or wait until you become a US citizen. But either of those options involves multiple years of waiting, and during that wait she doesn't gain any eligibility to stay in the US (unless she has another basis for staying in the US like a work visa).

Another option if she is not allowed to do that (as the visa would be non immigrant status and the GC application would contradict that as its applying for immigrant status) would be if she gets an employment visa and then we wait five years I then become a US citizen, then I apply for her?

The H1B and L1 visas allow immigrant intent, so being married to a permanent resident or citizen, or even having a pending GC petition wouldn't get in the way of using those visas. But other visas are not so permissive.

 

[41john]

No. You can't get the green card in one category (Immediate Relative) and then have her join you in the married/over 21 category. Once you get the green card as an Immediate Relative, your spouse cannot get a derivative green card linked to you, she can only get a direct green card. But she has no direct relationship with your stepmother, so somebody else would have to sponsor her.

That somebody else could be you; you could sponsor her in the family 2A category or wait until you become a US citizen. But either of those options involves multiple years of waiting, and during that wait she doesn't gain any eligibility to stay in the US (unless she has another basis for staying in the US like a work visa).


The H1B and L1 visas allow immigrant intent, so being married to a permanent resident or citizen, or even having a pending GC petition wouldn't get in the way of using those visas. But other visas are not so permissive.

Thank you ever so much for your time to answer my questions. Since your so good at answering my questions i have a few more

I'm planning to submit the papers for my GC just a month before my 21st birthday (5th April), I believe the process varies in time depending on each consulate, but if accepted how long would I have until I need to enter the US to start my residency?

My Girlfriend realises she has no choice but to apply for a H1B if she is to come with me. I know there are strict quotas, and that you should file from April 1st, are there any statistics available for the number of applications they get on April 1st and how many get denied (and why) etc. Basically we just want to be realistic on our chances of her getting a work visa. She is currently a Freelance IT Consultant in the UK (if that makes a difference?).

 

[Jackolantern]

I'm planning to submit the papers for my GC just a month before my 21st birthday (5th April),

Don't cut it so close. US Immigration is very incompetent, and they could lose your application or take too long to enter it in the system, and then claim you didn't submit it before your 21st birthday. Or other things could go wrong.

Have your stepmother apply this summer, or the latest December this year. It will likely take 5-9 months to get approved at the consulate, and then you'll have 6 months after that to enter the US. And even then, you could exit the US the next day to go back to your country for a few months to clear up your affairs before finally settling down in the US. So there is no real advantage to delaying the filing until next year, unless you plan to visit the US before immigrating.

Note that with you outside the US and planning to complete the process via the consulate, there are no papers for you to personally file yet. The only filing for now would be form I-130 submitted by your stepmother (although you may need to provide her with certain supporting documents such as your birth certificate). You would file the rest after the I-130 is approved and wait for your interview at the consulate.

My Girlfriend realises she has no choice but to apply for a H1B if she is to come with me. I know there are strict quotas, and that you should file from April 1st, are there any statistics available for the number of applications they get on April 1st and how many get denied (and why) etc. Basically we just want to be realistic on our chances of her getting a work visa. She is currently a Freelance IT Consultant in the UK (if that makes a difference?).

As of June 18 they have received only 22,900 applications, out of the 65000 + 20000 quota. See http://www.aila.org/content/default.aspx?docid=31829. So there should still be 3-4 more months this year before it runs out. The visas will be issued starting in October.

She is currently a Freelance IT Consultant in the UK (if that makes a difference?).

She can't freelance in the US with an H1B visa, but that experience could help her get hired by an IT consulting company. She should have at least a bachelor's degree in order to qualify for the visa.

 

[41john]

Thank you so much again!

She should have at least a bachelor's degree in order to qualify for the visa.

She doesn't have a degree, by the time of filing she would have 7 years IT experience. Would that be a enough?

Another option we thought of was for her to take a degree in the US (F1 Visa), then when she has completed it move onto a H1B. Once she is on a H1B I could file for her to get a GC from me. Is that actually a viable option?

 

[Jackolantern]

She doesn't have a degree, by the time of filing she would have 7 years IT experience. Would that be a enough?

Without a bachelor's degree, for the H1B they require 12 years of progressive experience in the given occupation. 6 years experience if she has an Associate degree (or whatever they would call a 2-year community college program in the UK). But even if she had the experience, most employers would be unwilling to hire her and file visa paperwork without the degree.

Another option we thought of was for her to take a degree in the US (F1 Visa), then when she has completed it move onto a H1B. Once she is on a H1B I could file for her to get a GC from me. Is that actually a viable option?

Yes, but with caveats.

The F-1 visa doesn't allow immigrant intent, so being married or even engaged to a green card holder could be a problem with obtaining the visa or being allowed to enter the US with it. Of course, you're probably wondering how they will know if she's engaged? First, they do ask about fiancee on the visa form, and later in the GC interview they ask about your relationship history, including when and where you got engaged. And what is said in the GC interview better match up with what was said back when the student visa was applied for.

Once she marries you and you have a green card, traveling with the student visa would be a risk, because if they (Immigration counter) ever ask if she's married she's in trouble. If she says Yes they probably don't let her in, if she says No the lie will be caught in the green card interview. So the marriage could mean she's stuck in the US until she gets an H1B or her own GC is in the last stages.

 

[41john]

The F-1 visa doesn't allow immigrant intent, so being married or even engaged to a green card holder could be a problem with obtaining the visa or being allowed to enter the US with it. Of course, you're probably wondering how they will know if she's engaged? First, they do ask about fiancee on the visa form, and later in the GC interview they ask about your relationship history, including when and where you got engaged. And what is said in the GC interview better match up with what was said back when the student visa was applied for.

Once she marries you and you have a green card, traveling with the student visa would be a risk, because if they (Immigration counter) ever ask if she's married she's in trouble. If she says Yes they probably don't let her in, if she says No the lie will be caught in the green card interview. So the marriage could mean she's stuck in the US until she gets an H1B or her own GC is in the last stages.

I don't think I explained it very well. What I mean't was she gets an F1 Visa, studies for 3/4 years and then once she has a degree she changes to H1B status. Once she is on a H1B we get engaged and married and then file for a GC as a spouse. When applying for an F1 we could say we are Friends and then later when we file for a GC that things changed and we fell in love.

 

[Jackolantern]

When applying for an F1 we could say we are Friends and then later when we file for a GC that things changed and we fell in love.

Don't go there, they will sniff out the lies. But she doesn't have to mention your existence on the visa application if she's not married to you and you're still outside the US without a GC. So if she goes for the visa before you move to the US your relationship won't create a problem.

Once she gets the student visa and enters the US, I agree it would be wise to just be dating and not engaged while she's in school in the US. In the GC interview don't pretend you were just friends; it's OK to admit that you've been dating for years, and it actually helps that you had a long relationship before getting married.

 

[41john]

Don't go there, they will sniff out the lies. But she doesn't have to mention your existence on the visa application if she's not married to you and you're still outside the US without a GC. So if she goes for the visa before you move to the US your relationship won't create a problem.

Once she gets the student visa and enters the US, I agree it would be wise to just be dating and not engaged while she's in school in the US. In the GC interview don't pretend you were just friends; it's OK to admit that you've been dating for years, and it actually helps that you had a long relationship before getting married.

Thanks for your help once again. Just a few final things and then I'm all out of questions I promise.

She would apply for the F1 Visa after I have started my GC process, but would probably have her F1 Visa before I get my GC or certainly before I actually move out there. Is that ok?

What if we moved out there at the same time, is that a bad idea? If so, who should go first?

Would she be allowed to say on her F1 visa application that she would stay with my step mother (if thats asked), or alternatively say she is living with me?

When I'm sponsoring her for a GC, are we allowed to say we were dating whilst in the UK, or should we just say we were dating once in the US?

 

[Jackolantern]

She would apply for the F1 Visa after I have started my GC process, but would probably have her F1 Visa before I get my GC or certainly before I actually move out there. Is that ok?

It's better for her to get the visa and move to the US while you are still outside the US without a GC, so she can cleanly stay away from mentioning you.

Would she be allowed to say on her F1 visa application that she would stay with my step mother (if thats asked), or alternatively say she is living with me?

I don't believe they ask who the student will stay with, they just ask for the address. Although it's possible they could ask about the "who" in the interview, if it's not a campus address. Living with you the GC holder would likely be a problem for them. Saying she'll live with your stepmother shouldn't be a problem while you're still outside the US. Although she should just say she'll be living with "a family friend" instead of "my boyfriend's stepmother" if asked about the relationship between her and the person she would stay with, and they probably won't dig deeper for more specifics.

When I'm sponsoring her for a GC, are we allowed to say we were dating whilst in the UK, or should we just say we were dating once in the US?

The time to answer those questions is in the GC interview, which is at the very last step of the process. By that time she would have finished her studies and either be back in the UK interviewing at the consulate, or inside the US working on H1B, so either way you won't be bothered with immigrant intent questions, and you can freely admit you were already dating back in the UK ... as long as that doesn't contradict what was said earlier in the visa interview or at the port of entry.

Basically, you want to coordinate the sequence of events (her F1, your GC, etc.) so that she's not in a position where she might have to answer questions when applying for her F1 or using her F1 that would put her in a position where she gets refused entry for telling the truth or tells a lie and gets screwed later when the lie is caught.

So initially when applying for the F1 and using it for the first time, if you're not married or engaged she won't have to list you on the application. If they ask "do you have a boyfriend", she can truthfully say "yes and he lives in the UK".

Then while she's studying and wanting to travel outside the US between semesters or spring break, they're unlikely to ask relationship questions at the airport or border. But in the 5% chance that they specifically ask if she has a boyfriend she can honestly say Yes because a large percentage of college students have boyfriends or girlfriends but most of them don't end up marrying that person. And if they dig further and ask if she's going to marry her boyfriend, she can truthfully say "I don't know, I'm not marrying anybody before I graduate". Just make sure you don't raise the officer's suspicion level by crossing the border or approaching the immigration counter together with her.

 

[41john]

It's better for her to get the visa and move to the US while you are still outside the US without a GC, so she can cleanly stay away from mentioning you.



I don't believe they ask who the student will stay with, they just ask for the address. Although it's possible they could ask about the "who" in the interview, if it's not a campus address. Living with you the GC holder would likely be a problem for them. Saying she'll live with your stepmother shouldn't be a problem while you're still outside the US. Although she should just say she'll be living with "a family friend" instead of "my boyfriend's stepmother" if asked about the relationship between her and the person she would stay with, and they probably won't dig deeper for more specifics.


The time to answer those questions is in the GC interview, which is at the very last step of the process. By that time she would have finished her studies and either be back in the UK interviewing at the consulate, or inside the US working on H1B, so either way you won't be bothered with immigrant intent questions, and you can freely admit you were already dating back in the UK ... as long as that doesn't contradict what was said earlier in the visa interview or at the port of entry.

Basically, you want to coordinate the sequence of events (her F1, your GC, etc.) so that she's not in a position where she might have to answer questions when applying for her F1 or using her F1 that would put her in a position where she gets refused entry for telling the truth or tells a lie and gets screwed later when the lie is caught.

So initially when applying for the F1 and using it for the first time, if you're not married or engaged she won't have to list you on the application. If they ask "do you have a boyfriend", she can truthfully say "yes and he lives in the UK".

Then while she's studying and wanting to travel outside the US between semesters or spring break, they're unlikely to ask relationship questions at the airport or border. But in the 5% chance that they specifically ask if she has a boyfriend she can honestly say Yes because a large percentage of college students have boyfriends or girlfriends but most of them don't end up marrying that person. And if they dig further and ask if she's going to marry her boyfriend, she can truthfully say "I don't know, I'm not marrying anybody before I graduate". Just make sure you don't raise the officer's suspicion level by crossing the border or approaching the immigration counter together with her.

Thank you so much for this advice, that has clarified everything for me.