Sponsoring my Canadian daughter - permanent resident

LuciDreamer

Registered Users (C)
Hi,

I got my greencard through employment back in 2010. Now my 16 year-old daughter who is Canadian joined my new family here in the US and we plan to sponsor her for permanent residence. I have not checked any immigration subjects or news for the last couple of years. Are there any precautions or caveats in having my daughter apply for her greencard based on my petition for her? She arrived as a B-2 (no I-94) in mid-August this year and should be safe to stay for 6 months after her arrival. She also went to high-school which should be fine and does not need any visa (I hope). I plan to fill out Form I-130 for her and then I-485. Are there any recommendations or suggestions regarding the process? How long will it take to get through? Her mother (my ex-wife) lives in Canada. Do we need any paperwork from her to submit regarding my daughter immigration?

Thank you in advance!
 
Thanks TheRealCanadian! I checked the "Follow to Join" information online, but it usually deals with situations when your immidiate relatives are abroad. Can I apply for my daughter if she already lives with me in the US?
 
Or maybe I was wrong, found something interesting on http://www.hooyou.com/news/news062410join.html

What does a LPR need to do if his/her family members qualify?

“Following-to-join” is convenient because it allows primary beneficiaries to do away with filing a separate I-130 for their spouse or child, greatly expediting the green card approval process. Furthermore, spouses and children of LPRs do not have to wait for a visa number to become available. Where a LPR’s spouse or child currently resides affects what procedures he/she needs to follow.

Spouse or child already in the United States

If your spouse and/or child are already in the United States, they may apply for adjustment of status (I-485) based on “following-to-join”.

http://www.hooyou.com/news/news062410join.html
 
Thanks TheRealCanadian! I checked the "Follow to Join" information online, but it usually deals with situations when your immidiate relatives are abroad. Can I apply for my daughter if she already lives with me in the US?

Yes. If the family relationship existed when you became a permanent resident and your category allowed derivative beneficiaries (which all EB categories do), your daughter is eligible. You can file an I-485 directly assuming your priority date remains current.
 
Yes. If the family relationship existed when you became a permanent resident and your category allowed derivative beneficiaries (which all EB categories do), your daughter is eligible. You can file an I-485 directly assuming your priority date remains current.

Well, that's the vague part which I can't fully understand yet. What is definition of the family relationship when I became a permanent resident? I got my GC based on EB-2 and the priority is current, but my daughter is from the previous marriage that ended in 2007. Does it mean that after we divorced with my ex-wife in 2007, my daughter stopped being considered part of my family anymore and I cannot sponsor her as a father even if I am her biological father??? In this case, can my current wife apply for my daughter as a stepmom or something? Really confusing and crazy immigration laws :(
 
Unless your parental rights have been legally and completely terminated, she was legally your daughter before your green card was approved, and continued to be your legal daughter (even if you lost custody), so the family relationship has existed from your green card approval until now.

However, filing I-485 based on follow to join has a risk of denial for having preconceived immigrant intent and attending school in tourist status. She entered the US while having a permanent resident parent, and then promptly enrolled in a US high school, which are signs that she entered with the intention to immigrate (or your intention to have her immigrate) rather than just visit. And the lenience regarding immigrant intent is reserved for immediate relatives of US citizens, not FB2 or EB applicants.

In addition, attending school would have violated her tourist status, making her ineligible to file I-485.

And since you are not a US citizen, you can't file her I-485 right after the I-130; there will be a wait of over 2 years for her to become eligible for a family-based I-485.

You should file I-824 so she can pursue a green card through a consulate in Canada.
 
Thanks Jackolantern. She just went to a public school like all kids do in late August, not to a college, they did not ask for any immigration papers or her F-1 visa. Yes, colleges and universities require F-1 or M-1 but not high-schools. Is there F-1 visa given for high-school attendance anyway?

My understanding that all children at their school age should have a right to study regardless of their immigration status. Immigration process takes some time and staying out of school may have more serious drawbacks for people. I found out online from an Immigration Attorney answering some related question that a B-2 tourist can go to public school up to 1 year http://www.avvo.com/legal-answers/how-can-a-canadian-finish-high-school-in-the-us--298930.html:

In general, a student can only attend a public school for a maximum of one year with a visitor visa. Sometimes arrangements are made and concluded, but many thereafter opt for private schools. The local school districts do not encourage truancy, so foreigners are often allowed to enroll in the public schools, even if this challenges Federal Immigration Law.


Yes, I read about the intent to immigrate, but it is a pretty volatile subject and is not a basis to reject her I-485. A person's circumstances may change any minute and she could enter the US to visit and then decided to stay with her dad here.
Besides having her apply from the Consulate in Canada, should we be able to apply for her status from the US?
 
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Unless your parental rights have been legally and completely terminated, she was legally your daughter before your green card was approved, and continued to be your legal daughter (even if you lost custody), so the family relationship has existed from your green card approval until now.

Correct.

However, filing I-485 based on follow to join has a risk of denial for having preconceived immigrant intent and attending school in tourist status. She entered the US while having a permanent resident parent, and then promptly enrolled in a US high school, which are signs that she entered with the intention to immigrate (or your intention to have her immigrate) rather than just visit. And the lenience regarding immigrant intent is reserved for immediate relatives of US citizens, not FB2 or EB applicants.

She's a minor. USCIS doesn't go around denying adjustments for kids because they weren't aware of plans their parents had for them.

In addition, attending school would have violated her tourist status, making her ineligible to file I-485.

This gets interesting. So long as she hasn't done this for over 180 days 245k will cover her.

And since you are not a US citizen, you can't file her I-485 right after the I-130; there will be a wait of over 2 years for her to become eligible for a family-based I-485.

He doesn't need an I-130; this is FTJ. All that's required is the I-485. The I-824 will take forever and isn't required.
 
Thanks TheRealCanadian. Right, she is only 16 and it is in the kid's best interest to have her stay with us here, because her mother left her and moved to another city in Canada.

So I can file I-485 directly within the US based on FTJ without the need for I-824? Do I need a copy of my whole I-485 application to send with hers? I don't know if I have it, because it was prepared by my employer's attorney and the employer changed the law firm a few months ago. I don't think I have access to my files any longer. But I do have my Form I-797, Notice of Action, etc.

I don't mind 245k, but how will CIS find out that she goes to high-school? Do I need to disclose that if they don't ask or something?
 
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So I can file I-485 directly within the US based on FTJ without the need for I-824? Do I need a copy of my whole I-485 application to send with hers?

A copy of your I-485 approval should be sufficient. Out of curiosity, do you have documents proving your legal custody of your daughter?

I don't mind 245k, but how will CIS find out that she goes to high-school? Do I need to disclose that if they don't ask or something?

I believe there's a biographical information section on the I-485.
 
This gets interesting. So long as she hasn't done this for over 180 days 245k will cover her.
Maybe. There are some naunces to it.

She's a minor. USCIS doesn't go around denying adjustments for kids because they weren't aware of plans their parents had for them.
The actions or intentions of the parent are often imputed to the children, sometimes resulting in denial or revocation of the green card.

Anyway, if the I-485 is denied the case can then be salvaged by filing I-824 and having the daughter go back to Canada to wait for the consular appointment, so it seems to make sense to try the I-485 and see what happens.
 
Thanks Jackolantern. She just went to a public school like all kids do in late August, not to a college, they did not ask for any immigration papers or her F-1 visa. Yes, colleges and universities require F-1 or M-1 but not high-schools.
Federal law prevents checking for immigration status in public high school and below. But that doesn't mean it's legal to attend public school without a visa or appropriate immigration status. If she goes back to Canada before getting her green card or Advance Parole, she could be refused entry if the border officer knows she attended school. Violating her tourist status by attending school would also disqualify her from adjusting status in various circumstances. Fortunately, that disqualification probably does not apply to her because of the 245k provision which forgives up to 180 days of status violation/expiration for certain employment-based applicants. But you have to make sure her I-485 is filed before she's been violating her status for 180 days.

Is there F-1 visa given for high-school attendance anyway?
Yes, F-1 can be used for high school. But if it's for public school it's restricted to 1 year, and the student cannot attend for free. See http://travel.state.gov/visa/temp/types/types_1269.html

I found out online from an Immigration Attorney answering some related question that a B-2 tourist can go to public school up to 1 year http://www.avvo.com/legal-answers/ho...s--298930.html:
That must have been a typo, and they meant "student visa", not tourist visa. For starters, the tourist visa only allows a 6-months stay, so that alone would make attending school for one year illegal.

Yes, I read about the intent to immigrate, but it is a pretty volatile subject and is not a basis to reject her I-485. A person's circumstances may change any minute and she could enter the US to visit and then decided to stay with her dad here.
Not credible. She arrived in mid-August, started school in August or September, while having a permanent resident father at the time of entry. It's kind of obvious that the intention from the beginning was to have her stay; you haven't mentioned any unexpected event (like her mother moving to another country or becoming seriously ill) that happened after she entered the US which suddenly made it more important for her to stay with you. You just have to hope the adjudicating officer doesn't make an issue of it.
 
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Federal law prevents checking for immigration status in public high school and below. But that doesn't mean it's legal to attend public school without a visa or appropriate immigration status.
Yes, looks like it's the case with the current state of schooling in the US, but isn't it absurd??? They freely welcome ANY non-immigrant kid attend a public school which is causing invalidation of a persons immigration status. There is something seriously wrong there.

Not credible. She arrived in mid-August, started school in August or September, while having a permanent resident father at the time of entry. It's kind of obvious that the intention from the beginning was to have her stay; you haven't mentioned any unexpected event (like her mother moving to another country or becoming seriously ill) that happened after she entered the US which suddenly made it more important for her to stay with you. You just have to hope the adjudicating officer doesn't make an issue of it.
I agree, based on the line of the events it does look like she arrived with the intention to stay with her father. But what would any normal father do in that case when his daughter was left by her mother who moved to another city and the child had no place to stay in Canada? I hope they must take into consideration that she is a minor child afterall and cannot go alone by herself. Do the same rules apply to a 16 year-old vs a 60 year-old?
 
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A copy of your I-485 approval should be sufficient. Out of curiosity, do you have documents proving your legal custody of your daughter?
I don't think I have any custody documents, need to check that. We divorced with a mutual agreement that our my daughter was staying with her mother in Canada without contending that part. The Dissolution of Marriage document from the Court states my daughter's name and alimony. My daughter would visit us in the US once or twice each year.
Can that be an issue for immigration purposes if my ex-wife has a full custody but in reality does not want to stay with her? I thought being a father should suffice for sponsorship. They allow stepparents and those who adopt children sponsor them, why should divorce make any difference in terms of parent-child relationship?
 
I am still unsure how to file I-485 with FTJ. Could someone please clarify? What other forms are needed besides I-485, if any, and if the dependent is already in the US? Everywhere I check about FTJ it says to file I-824 for consular processing which takes a long time or I-864. Also, does it have any timeframe for FTJ after my I-485 has been approved?

I checked both the I-485 Form and Instructions and there are no clear references to Follow-to-Join cases anywhere. I think it falls under Category b. in Application Type Page 1: My spouse of parent applied for adjustment of status.... that allows derivative status for spouses and children.
 
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Maybe. There are some naunces to it.

There's no nuance to 245k. It clearly prohibits USCIS from denying an adjustment to EB applicants if they have been out of status for 180 days or less.

The actions or intentions of the parent are often imputed to the children, sometimes resulting in denial or revocation of the green card.

If USCIS wants to go after the primary applicant, yes. In this case, the primary applicant is already a permanent resident and already has immigrant intent. As I mentioned before, USCIS doesn't go around screwing minors for the fun of it.

Anyway, if the I-485 is denied the case can then be salvaged by filing I-824 and having the daughter go back to Canada to wait for the consular appointment, so it seems to make sense to try the I-485 and see what happens.

Agreed.
 
I don't think I have any custody documents, need to check that. We divorced with a mutual agreement that our my daughter was staying with her mother in Canada without contending that part. The Dissolution of Marriage document from the Court states my daughter's name and alimony. My daughter would visit us in the US once or twice each year.
Can that be an issue for immigration purposes if my ex-wife has a full custody but in reality does not want to stay with her?

Absolutely. Your biggest concern is if you don't have custody of your daughter. I would strongly suggest you get this straightened out before anything immigration-related. If you are divorced, USCIS will want to see evidence that you have custody of your daughter.

I thought being a father should suffice for sponsorship. They allow stepparents and those who adopt children sponsor them, why should divorce make any difference in terms of parent-child relationship?

Have you ever heard of custodial interference and the abduction of children by non-custodial parents?
 
I am still unsure how to file I-485 with FTJ. Could someone please clarify? What other forms are needed besides I-485, if any, and if the dependent is already in the US? Everywhere I check about FTJ it says to file I-824 for consular processing which takes a long time or I-864. Also, does it have any timeframe for FTJ after my I-485 has been approved?

The I-824 is to start the process for consular processing if the alien is abroad. Since your daughter is in the US, the I-485 is all that is needed and once it is approved, FTJ is complete and she will become a permanent resident.

I checked both the I-485 Form and Instructions and there are no clear references to Follow-to-Join cases anywhere. I think it falls under Category b. in Application Type Page 1: My spouse of parent applied for adjustment of status.... that allows derivative status for spouses and children.

Correct.
 
Absolutely. Your biggest concern is if you don't have custody of your daughter. I would strongly suggest you get this straightened out before anything immigration-related. If you are divorced, USCIS will want to see evidence that you have custody of your daughter.
That scares me now a little bit. I just checked the 2-page "Dissolution of Marriage" document from the Court and it says that both Mother and Father have Shared Parental responsibilities over the child. The primary residence is with Mother. There is no check-mark under the Custody paragragh where either Father or Mother have indicated sole custody over the child. Does that suffice to prove that we have equal custody or I need something else? If I ask my ex to get the new custody papers signed giving me full custody, and they are dated as of now, will it invalidate the "Follow to Join"?
 
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