"W" obtained permanent residence through "H1". Got divorced, married US citizen "H2". H2 applied for immigration of of stepson, child of W. At the time of the adjustment interview, W was a permanent resident, not a conditional resident. However, W had been married to H2 for less than two years. The Service granted residence to the stepson but classified him as a CR7. I disagree. As I read INA Sec. 216 (a) and (g), the stepson can only be a conditional resident if his mother is a conditional resident. In my opinion, the son should have been granted PR status. Anyone have an opinion?
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PR or CPR status for step-child US Citizen petitioner married to PR
- Thread starter Lafayette
- Start date
Jackolantern
Registered Users (C)
The language of that section isn't crystal clear, but to me it appears that USCIS was correct, given that W's unconditional PR status didn't arise from the current marriage to the second USC. There is nothing there that says the (step)child should only have conditional status if their noncitizen parent has conditional status; the conditionality is based on whether the qualifying marriage is less than 24 months old.
You should get a lawyer to help find any precedents for this unusual situation and help you to challenge the decision if they think USCIS is in the wrong.
(1) The term "alien spouse" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise)-
(A) as an immediate relative (described in section 201(b) ) as the spouse of a citizen of the United States,
(B) under section 214(d) as the fiancee or fiancé of a citizen of the United States, or (C) under section 203(a)(2) as the spouse of an alien lawfully admitted for permanent residence, by virtue of a marriage which was entered into less than 24 months before the date the alien obtains such status by virtue of such marriage, but does not include such an alien who only obtains such status as a result of section 203(d).
(2) The term "alien son or daughter" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage.
You should get a lawyer to help find any precedents for this unusual situation and help you to challenge the decision if they think USCIS is in the wrong.
I actually am a lawyer but appreciate anyone looking at the statute since I am unsure of my opinion. For me, the key is the term "qualifying marriage". As that term is used in the statute, I believe it only defines a marriage entered into less than 24 months before the application through which the alien spouse obtains conditional residence. Here the alien did not obtain status through that marriage. She was already a permanent resident. Thus, the stepson is not obtaining permanent resident status through a "qualifying marriage" but through an ordinary marraige. Also, I do not believe that the petition to remove conditions is set up for this situation although there is a category for alien children who "entered as a conditional permanent resident" and for some reason are "unable to be included in a joint petition" filed by the parents..
TheRealCanadian
Volunteer Moderator
I actually am a lawyer but appreciate anyone looking at the statute since I am unsure of my opinion. For me, the key is the term "qualifying marriage". As that term is used in the statute, I believe it only defines a marriage entered into less than 24 months before the application through which the alien spouse obtains conditional residence.
I would read it as the marriage through which the alien obtains permanent residence. For an alien spouse, it is the spouse's marriage, but for an alien stepchild it is the marriage through which the step-parent/step-child relationship was established.
I would read it as the marriage through which the alien obtains permanent residence. For an alien spouse, it is the spouse's marriage, but for an alien stepchild it is the marriage through which the step-parent/step-child relationship was established.
Again, thanks for looking at this. I don't know how you reach your conclusion from the languge of the statute.
Relevant excerpts of Sec. 216. [8 U.S.C. 1186a] are:
(a) In general.-
(1) Conditional basis for status.-Notwithstanding any other provision of this Act, an alien spouse (as defined in subsection (g)(1)) and
an alien son or daughter (as defined in subsection (g)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.
`* * * * *
(g) Definitions.-In this section:
(1) The term "alien spouse" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise)-
(A) as an immediate relative (described in section 201(b) ) as the spouse of a citizen of the United States,
by virtue of a marriage which was entered into less than 24 months before the date the alien obtains such status by virtue of such marriage, but does not include such an alien who only obtains such status as a result of section 203(d).
(2) The term "alien son or daughter" means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage.
(3) The term "qualifying marriage" means the marriage described to in paragraph (1).
(4) The term "petitioning spouse" means the spouse of a qualifying marriage, other than the alien.
The definition of "alien son or daughter (subpar. [g][3]) for conditional residence purposes includes the requirement that he or she be a son or a daughter through a "qualifying marriage". Subparagraph (g)(3) sends you back to subparagraph (g)(1) for the descrption of a "qualifying marriage". It is the marriage is of an "alien spouse" "who obtains the status of an alien lawfully admitted for permanent residence by virtue of a marriage entered into less than 24 months before the date the alien [by context, "alien" here has to mean the mother, not the child] obtains such status by virtue of such marriage. Thus, a "qualifying marriage" must be one whereby the "alien spouse" obtains her permanent residence. In this case, she did not obtain her permanent residence through the marriage to the US citizen petitioning for her son.
Lafayette,
The key consideration is: "How long had the marriage lasted when the I-485 was approved for the IR-stepchild?" If less than 2 years, CR is correct.
I would be happy to agree (I am confident that it is a good faith marriage) if someone would show me how that it is supported by the language of the statute. The conditional residence category was created to combat marriage fraud. To extend CR to the stepchild when the alien mother is already a permanent resident, there must be a reading of the statute or construction of the statute that supports that result. Conceptionally I don't see it either. The object of the statute was to combat marriage fraud entered into the immigration benefit of the alien spouse. I don't see that the object was to combat marriage fraud entered into for the benefit of the alien stepchild.
Jackolantern
Registered Users (C)
I don't see that the object was to combat marriage fraud entered into for the benefit of the alien stepchild.
Given the multi-year waiting period for the F2A category, and the possibility of aging out into the even slower F2B, marrying a US citizen can be a very attractive way to bypass that wait. It makes sense to me that one purpose of the 2-year conditional period is to combat sham marriages that are entered for the benefit the stepchild.
I would be happy to agree (I am confident that it is a good faith marriage) if someone would show me how that it is supported by the language of the statute. The conditional residence category was created to combat marriage fraud. To extend CR to the stepchild when the alien mother is already a permanent resident, there must be a reading of the statute or construction of the statute that supports that result. Conceptionally I don't see it either. The object of the statute was to combat marriage fraud entered into the immigration benefit of the alien spouse. I don't see that the object was to combat marriage fraud entered into for the benefit of the alien stepchild.
Why did this child not obtain status along with the mother? It makes no sense that the child needed to go through the USC step-parent UNLESS there was a PROBLEM going the other route. What aren't you disclosing? If mama adjusted from H1-B to EB-2 or ? why did the kid not become an LPR as her dependent or follow-to-join? Was he a B-2 overstay or something? An out-of-status F-1? What's the deal?
TheRealCanadian
Volunteer Moderator
If mama adjusted from H1-B to EB-2 or ?
I believe from the original post "H1" is referring to first husband, not H-1B.
I believe from the original post "H1" is referring to first husband, not H-1B.
Perhaps, however, if H-1 was (the 1st husband?) and he was the kid's dad or prior stepdad, why is he now reliant on this USC guy for his status?
TheRealCanadian
Volunteer Moderator
Perhaps, however, if H-1 was (the 1st husband?) and he was the kid's dad or prior stepdad, why is he now reliant on this USC guy for his status?
That's true, and a very good question. Why did the child not get the GC at the same time as the mother?
Why did this child not obtain status along with the mother? It makes no sense that the child needed to go through the USC step-parent UNLESS there was a PROBLEM going the other route. What aren't you disclosing? If mama adjusted from H1-B to EB-2 or ? why did the kid not become an LPR as her dependent or follow-to-join? Was he a B-2 overstay or something? An out-of-status F-1? What's the deal?
H1 means "husband no. 1". The mother became a permanent resident by virtue of her marriage to H1. H1 was not the father of her son. Why the son did not follow the mother (and stayed with his grandparents in Macao) at that time, I don't know... There could be many legitmate reasons... such as the son was happy where he was or that the mother wanted to see how things worked out with H1. The son eventually came in as a visitor after W married H2.
I agree that one could commit marriage fraud to benefit a child. But if the statute is intended to cover that possbility, it should be written to do that and such an intent should be apparent.
Jackolantern
Registered Users (C)
How far is "W" away from naturalization? Given the time to get to the point of successfully removing conditions on her own green card, get divorced, marry again, and obtain green card approval for her child based on the new marriage, I would expect she's had a green card for more than 3 years by now.
So if she hasn't traveled too much nor committed any disqualifying crimes, that would mean naturalization eligibility is less than 2 years away. If she can naturalize before it is time to file for removal of conditions for her child, and the child is still under 18 and living with her when she naturalizes, the child could get US citizenship through the Child Citizenship Act and bypass the removal of conditions process.
So if she hasn't traveled too much nor committed any disqualifying crimes, that would mean naturalization eligibility is less than 2 years away. If she can naturalize before it is time to file for removal of conditions for her child, and the child is still under 18 and living with her when she naturalizes, the child could get US citizenship through the Child Citizenship Act and bypass the removal of conditions process.
How far is "W" away from naturalization? Given the time to get to the point of successfully removing conditions on her own green card, get divorced, marry again, and obtain green card approval for her child based on the new marriage, I would expect she's had a green card for more than 3 years by now.
So if she hasn't traveled too much nor committed any disqualifying crimes, that would mean naturalization eligibility is less than 2 years away. If she can naturalize before it is time to file for removal of conditions for her child, and the child is still under 18 and living with her when she naturalizes, the child could get US citizenship through the Child Citizenship Act and bypass the removal of conditions process.
I thought I had replied to this last week but do not see my post. Your idea is a good one. I am itching for a legal argument with the USCIS district office but why get into it if the stepson can get naturalized so quickly. Thanks.
Jackolantern
Registered Users (C)
I thought I had replied to this last week but do not see my post. Your idea is a good one. I am itching for a legal argument with the USCIS district office but why get into it if the stepson can get naturalized so quickly. Thanks.
The child's citizenship could be a bit complicated because it involves proof of custody, and there are three men involved here ... the biological father, husband H1 and husband H2. She'll need to show that she has custody (at least joint custody), and not the bio father or H1 having full custody. If she doesn't already have the necessary custody papers, she may have to start seeking those documents far in advance of her naturalization, especially if the documents have to be obtained from a court or government agency abroad.
Also note that for her to secure her son's citizenship without removing conditions from the green card or at least applying to remove conditions, she would have to complete her own citizenship process before her son's 2-year card expires. Once that 2-year card expires without having applied to remove conditions and without her becoming a US citizen, her son would no longer be considered to have valid permanent resident status and would not be eligible for derived citizenship through the Child Citizenship Act.
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