Concurrent filing for a biological son of Lawful permanent resident

Youssef1983

New Member
Hi,
Can someone help elucidate one of my concerns.
My spouse and I are lawful permanent residents and I plan to petition for our son who lives with us in the United States. I was on F1 visa before being permanent resident and my son was on F2 (he came first on B2 then switched to F2).
I read recently a lot about filing concurrently the forms I-130 and I-485 and some suggest that it is now possible to do so for F2A preference (immediate relative of LPR).
Can you please confirm that?
 

newacct

Well-Known Member
No. F2A currently has a wait for visa numbers of around 1.5 years. You cannot file I-485 until a visa number is available. Also, as he's not in the Immediate Relative category (spouse, under-21 unmarried child, or parent of US citizen), he is not eligible for Adjustment of Status if he is out of status, and he is out of F2 status since you and your spouse are permanent residents and no longer have F1 status.

Also, why bother petitioning him at all? If he was born before you became permanent residents, he should be immigrating as your derivative beneficiary. How did you and your spouse become permanent residents?
 

Youssef1983

New Member
We became permanent resident through the Diversity visa program. I didn't adjust with him at the same time because I didn't include him (neglectfully) during the lottery entry and I thought that could have been a problem.
Also he was on B2 before upgrading to F2.
 

Youssef1983

New Member
You are right about the immediate relative category. My would fall under the second one (F2A).
The thing is I do want him to stay with us until his status is adjusted but I don't know how to keep him "lawfully" during that time.
 

newacct

Well-Known Member
Oh yes that is a problem as DV visas must be issued before the end of the fiscal year. So if that has ended then it's too late for him to immigrate as derivative.

So as I said, he won't qualify for AOS even when a visa number becomes available in one or two years, because he is out of status. He will have to leave the US to do Consular Processing in his home country when the time comes. He is already illegal and they can deport him if they want, though it's highly unlikely. He is not accruing "unlawful presence" so he won't trigger a ban when he leaves the US.
 

1AurCitizen

Registered Users (C)
We became permanent resident through the Diversity visa program. I didn't adjust with him at the same time because I didn't include him (neglectfully) during the lottery entry and I thought that could have been a problem.

Wonder if that could become a bigger issue (willful neglect\misrep) during CP.
 

newacct

Well-Known Member
You mean you failed to list him on the form question that ask to list all your children? (I thought you simply failed to go though the process to get a visa for him.) If so, that could be an issue, but it should be okay since you let them know before the interview and they didn't deny you.
 

Sm1smom

Super Moderator
We became permanent resident through the Diversity visa program. I didn't adjust with him at the same time because I didn't include him (neglectfully) during the lottery entry and I thought that could have been a problem.
Also he was on B2 before upgrading to F2.

Failure to include your son on your eDV should have resulted in a denial of your AOS petition as a matter of fact. I believe you and your wife were erroneously approved in the first place. The IO that interviewed and subsequently approved your case probably wasn't aware of the fact that your petition should have been denied due to the fact that your son wasn't included in your eDV registration - I wouldn't be surprised if they review this when your son's priority date becomes current.
 

1AurCitizen

Registered Users (C)
Failure to include your son on your eDV should have resulted in a denial of your AOS petition as a matter of fact. I believe you and your wife were erroneously approved in the first place. The IO that interviewed and subsequently approved your case probably wasn't aware of the fact that your petition should have been denied due to the fact that your son wasn't included in your eDV registration - I wouldn't be surprised if they review this when your son's priority date becomes current.

That's what I was thinking.. when posting earlier about this potentially becoming a bigger issue during child's IV Consular Processing.
 

Youssef1983

New Member
That's what I was thinking.. when posting earlier about this potentially becoming a bigger issue during child's IV Consular Processing.
Some attorneys turned me down cause they believed my case would have been denied for misrepresentation. So, I had to do all the process by myself. After I sent all the AOS package, uscis mailed me asking to explain why I'm not filing for the boy and I responded to them honestly. At the interview, the officer told us we could have even applied for our son without any problem. I guess I was just lucky.
 

Youssef1983

New Member
You mean you failed to list him on the form question that ask to list all your children? (I thought you simply failed to go though the process to get a visa for him.) If so, that could be an issue, but it should be okay since you let them know before the interview and they didn't deny you.
Yes.
 

Youssef1983

New Member
Failure to include your son on your eDV should have resulted in a denial of your AOS petition as a matter of fact. I believe you and your wife were erroneously approved in the first place. The IO that interviewed and subsequently approved your case probably wasn't aware of the fact that your petition should have been denied due to the fact that your son wasn't included in your eDV registration - I wouldn't be surprised if they review this when your son's priority date becomes current.
The IO officer was fully aware of that. She had the explanation letter and even asked me questions about that.
 

Sm1smom

Super Moderator
The IO officer was fully aware of that. She had the explanation letter and even asked me questions about that.

I'm glad you discussed the issue of your son's exclusion with the IO. However, I highly doubt she was aware of the requirement that says:

Failure to list all children who are eligible will result in disqualification of the principal applicant and refusal of all visa applications in the case at the time of the visa interview. See the Frequently Asked Questions for more information about family members.​
https://travel.state.gov/content/da...ranslations/DV-2017 Instructions and FAQs.pdf

9 FAM 502.6 also clearly states:

You must deny the applications of applicants who failed to list on their initial entries a spouse or all children who were required to be listed. This does not include a spouse or child who was acquired subsequent to submission of qualifying DV entry. The spouse of a principal alien, if acquired after the initial entry and prior to the principal alien’s admission, or the child of a principal alien, if the child was born after entry or is the issue of a marriage which took place after entry and prior to the principal alien’s admission to the United States, although not named on an application, is entitled to derivative DV status.
https://fam.state.gov/fam/09FAM/09FAM050206.html

So I'm fairly certain the IO wasn't aware of the implications of not including a qualified derivative on the eDV registration.
 

Sm1smom

Super Moderator
May I know why you're are this question?

I'm asking because I believe I have a decent understanding of DV based AOS petitions.
I know you're a DV2017 selectee - which means it's only a couple of months (at most) since you got your GC and I'm trying to get an understanding of your timeline.
In all my years of tracking DV based AOS petitions, I've never heard of USCIS contacting a petitioner and asking them to explain why a 'derivative' isn't being filed for prior to an IL being issued - USCIS rarely ever issue an RFI for DV based AOS petition, it is a time sensitive petition.
Since I'm tracking the FOs, I'm interested in knowing if a particular FO has modified their process - the information will be useful to other DV based AOS petitioners.
 

abumiqdad

Member
Your case is of interest to me. I am trying to get an answer of how to bring my child into the USA as he was not included in my DV application as well (he was born after i submitted my DV visa application but before my interview (and the officer was made aware of the fact as well - i was given the choice to either include him BUT risk of visa running out [it was already july when the interview happened and the officer asked me to make a decision there and then and i chose not to include him]) . Subsequently when i needed to go to the USA to activate the green card, my 9months old boy got denied his visitors visa.

I guess someone needs to petition for him now
 
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