Moving to the USA with 20 year old dependant

[bigbend]

I'm a UK citizen currently living in the UK with my partner who's a citizen of the USA.
I already have a L1B visa which allows me to work for my employer in America. The L1B expires in December 2013.
Since getting the visa, we've both been offered permanent places to work in the USA. We've accepted and plan to move in June.

Now the wrinkle...
My son would like to come too. He's 19 years of age, but turns 20 in April. As I understand it he can come as a dependant but will have to leave the USA when he turns 21.

Does anyone have any advice on the best way to proceed to secure him permanent residency in the quickest time possible? We're thinking of getting married in the near future so I'm hopeful that any application could use that as a factor. If so, I'd like to know if there's any difference between marriage here in the UK or in the USA with regard to speed of processing so that we can decide as soon as possible which to persue.

Thanks in advance.
Bigbend.

 

[Jackolantern]

Your marriage or lack thereof won't make a difference for your son's immigration, assuming that he's your own son and not your future spouse's son.

Has your employer offered to file permanent residence for you? If yes, your son could join your green card process as a derivative, and he wouldn't have to leave at 21, provided certain criteria have been met and the relevant papers filed before he turns 21.

 

[bigbend]

Thanks Jack.

Yes the company has offered to sponsor the green card process. Does that make a differerence to my son's status during the application? I was under the impression that applying for a green card on an L1B visa was a fairly lengthy process (several years) and that 'aging out' (turning 21) during the process would mean that my son would have to leave. Are you suggesting that his green card application would continue even though he's no longer a minor? Is this because of the child protection act?

 

[Jackolantern]

Notice that I wrote "provided certain criteria have been met and the relevant papers filed before he turns 21". The Child Status Protection Act has conditions that must be satisfied in order for him to stay after turning 21 during the process.

So the question here is whether you are able to meet the criteria and file the relevant papers before his 21st birthday. The ability to do those things depends on whether a labor certification is required, whether your US job will be in EB1, EB2, or EB3, and whether you were born outside of the most oversubscribed countries (namely India and China). Note that the country categorization is based on country of birth, not country of citizenship. So even though you mentioned you are a UK citizen, you could have been born anywhere else in the world.

The key is to have your I-140 and I-485 filed before he turns 21. If you do that, he will be able to file his I-485 along with yours, and once his I-485 is filed before 21 he'll be OK to stay regardless of how long it takes to complete the green card process.

If you are in EB3 (anywhere), or EB2 China/India, that will almost surely be impossible; you will have to wait years to file I-485, by which time he would have aged out (unless the I-140 was also pending for years and he squeezes in with a CSPA adjustment -- but that is very unlikely so I won't get into those details now).

I'm going to take an educated guess that you were born in the UK, and that you and your job qualify for EB2 and will require a labor certification. Being in EB2 (non-India/China) would mean you can file the I-140 and I-485 together as soon as the labor certification is approved. Labor certification processing times typically are 1 or 2 months these days. Before the labor certification is filed, your employer will have to do a few weeks or months of job advertising and related legwork (they can start this before you move to the US -- so please encourage them to do that), so add another 3 or 4 months to the 1 or 2 months for the labor certification itself. So if things go reasonably well, your labor certification is done in about 6 months, which is months before your son turns 21.

But if your labor certification is audited, it is likely to take over a year, and your son will age out before the I-140 and I-485 can be filed.

I was under the impression that applying for a green card on an L1B visa was a fairly lengthy process (several years)...

Note that the L1B visa itself doesn't directly have anything to do with the length of the green card process. It just happens that most people who work in the US with an L1A visa also happen to meet the criteria for the fast-tracked EB1, and most people who enter with an L1B visa don't. But it's possible to be in the US with L1B, H1B, TN, or O1 and qualify for EB1. And it's possible to have an L1A and not qualify for EB1, depending on the specifics of the job. It's not your L1B visa that may cause your process to take long, it's your qualifications and the nature of the US job you will have.

 

[bigbend]

Jack, thanks again, your answers are very useful.
In answer to your questions, I was born in the UK, and I think I'll qualify for EB2.

With regard to my initial question, I think I'm beginning to get there
Summarizing what I understand so far...

Although I have an L1B visa and hence permission to work for a finite period, if I apply for a green card then my employer needs to petition for me to work on a permanent basis by:

- advertising the job, then
- filing for labour certification, then once approved,
- filing form I-140 (Immigrant Petition for Alien Worker)​

I can submit my I-485 (adjustment of status) at the same time as my employer submits the I-140. My son can also file his own I-485 at this time. Provided that's done before he turns 21, he will not be required to leave the USA.

Throughout the whole process I can continue to work in the USA under the provisions of the L1B. My son will be unable to work until his green card come through.

Best guess processing times:

3-4 months job advertising
1-2 months labour certification
[here my son can stay]
? months - adjustment of status with EB2 priority
[here my son can work]​

This is all relevant to obtaining an 'employment based' green card. The timing looks hopeful with regard to keeping my son with me.

Some questions:

1. Have you any idea how long the EB2 processing time is?
2. Am I correct in summarizing the green card through marriage process as follows?

- Get married (abroad or in the USA)
- My wife files I-130 (petition for alien relative) to establish a relationship with me.
- At the same time I file an I-485. (Would I also need to file an I-140?)
- At the same time my son files an I-485 basing his application on mine. (Would he also need to file an I-140?)​

3. I think you implied no before, but just to be sure ... is the processing time shorter for a green card through marriage?​

Thanks.

 

[Jackolantern]

With regard to my initial question, I think I'm beginning to get there
Summarizing what I understand so far...

Although I have an L1B visa and hence permission to work for a finite period, if I apply for a green card then my employer needs to petition for me to work on a permanent basis by:

- advertising the job, then
- filing for labour certification, then once approved,
- filing form I-140 (Immigrant Petition for Alien Worker)​

I can submit my I-485 (adjustment of status) at the same time as my employer submits the I-140. My son can also file his own I-485 at this time. Provided that's done before he turns 21, he will not be required to leave the USA.

Throughout the whole process I can continue to work in the USA under the provisions of the L1B. My son will be unable to work until his green card come through.

Your understanding is correct, except that your son probably will be able to work before his green card is approved. When he files his I-485, he is also eligible to file I-765 for work authorization, which is usually granted in 2-3 months. So he'll get that before his green card is approved, unless they process the I-140 and I-485 so fast that he gets the green card before the 2-3 months that it takes to approve the work authorization! Although unusual, that actually happens sometimes for people in EB2 and EB1. But 5-7 months is more typical for a combined I-140/I-485 in EB2 (non-China/India, of course).

Note that there are other forms to be submitted with the I-485, like the I-693 medical and G-325A. Your employer will advise you on those details.

It will take some number of months for your son to be able to work, but with his L2 visa he would immediately be eligible to study at a college in the US, without the usual rigmarole that foreign students have to do for a student visa. Of course, he would still have to follow the usual application process that US residents have to go through, so he should start researching that now if he wants to start in August/September when the next academic year begins.

2. Am I correct in summarizing the green card through marriage process as follows?

If you want your son to stay in the US and pursue a green card, go for the employment-based green card process, not marriage-based. He can't join you with your marriage-based process because you didn't marry before he turned 18. While 21 is the cutoff for the relevant papers to be filed, 18 is the cutoff for when the marriage must occur to establish a qualified stepparent relationship.

You can have an employment-based and marriage-based I-485 going on at the same time, but if your marriage-based green card is approved first, your employment-based process will be cancelled, and your son's L2 visa and I-485 (linked to your just-cancelled employment-based I-485) will also be cancelled.

Another advantage of the employer-sponsored route is that upon green card approval you will directly get a 10-year unconditional green card, whereas the marriage-based route would result in a 2-year conditional card (because you've been married for less than 2 years), then when it is about to expire you'll have another round of paperwork and possibly another interview to extend it to a 10-year unconditional card.

However, if your son is unable to stay in the US right now for a green card, either because you decided to pursue the marriage-based route or he was unable to file I-485 before turning 21 due to delays in your labor certification, or whatever other reason, it's not the end of his green card prospects. After you obtain your green card, you can file an I-130 for him and he can pursue the process through a US consulate in the UK, although he'll have to wait a number of years.

 

[bigbend]

OK, I'll look into pursuing the employment based green card.

Thanks for your time in answering my questions.

Bigbend.

 

[Dretto]

I'm a UK citizen currently living in the UK with my partner who's a citizen of the USA.
I already have a L1B visa which allows me to work for my employer in America. The L1B expires in December 2013.
Since getting the visa, we've both been offered permanent places to work in the USA. We've accepted and plan to move in June. Our company
commercial movers near me Great Job Moving. Now the wrinkle...
My son would like to come too. He's 19 years of age, but turns 20 in April. As I understand it he can come as a dependant but will have to leave the USA when he turns 21.

Does anyone have any advice on the best way to proceed to secure him permanent residency in the quickest time possible? We're thinking of getting married in the near future so I'm hopeful that any application could use that as a factor. If so, I'd like to know if there's any difference between marriage here in the UK or in the USA with regard to speed of processing so that we can decide as soon as possible which to persue.

Thanks in advance.
Bigbend.

how did you solve the issue of moving?