LuciDreamer
Registered Users (C)
Got that, thank you!
Sponsoring my Canadian daughter - permanent resident
- Thread starter LuciDreamer
- Start date
Got that, thank you!
LuciDreamer
Registered Users (C)
Definitely. I heard a lot about it on the news, but it would be harder for someone to abduct his own child in that age
Usually it happens with much younger kids. It was my daughter's own decision to stay with us and if she is called for an interview at CIS, she can prove it.LuciDreamer
Registered Users (C)
It's really interesting what is custody and how it is interpreted... I checked the FL Family Law online and found something:
5. Parental Responsibility.
In Florida we no longer use the terms “child custody,” “residential parent,” or “visitation.” Instead, Chapter 61 provides for “shared parental responsibility” a term that refers to a court-ordered co-parent relationship. Under shared parental responsibility both parents retain full parental rights and responsibilities and they are ordered to confer and jointly make all major decisions affecting the welfare of their child/ren. (However, parents may decide that one parent will be responsible for certain aspects of the child’s life, such as education, and the other parent will be in charge of religion or health, etc.) Parents sharing parental responsibility are both entitled to access their child’s medical, dental, and school records and information.
The Florida legislature and judiciary support the concept of shared parental responsibility. However, if the parents agree otherwise or if the court finds that shared parental responsibility would be detrimental to a child/ren, sole parental responsibility could be ordered. That would mean that one of the parents has unilateral decision-making authority for the children.
That basically means that we both have an "implied" equal custody over the child if we have a shared parental responsibility, correct? Just sole custody to Mother did not apply it our case, unless it had been explicitly stated in the document.
5. Parental Responsibility.
In Florida we no longer use the terms “child custody,” “residential parent,” or “visitation.” Instead, Chapter 61 provides for “shared parental responsibility” a term that refers to a court-ordered co-parent relationship. Under shared parental responsibility both parents retain full parental rights and responsibilities and they are ordered to confer and jointly make all major decisions affecting the welfare of their child/ren. (However, parents may decide that one parent will be responsible for certain aspects of the child’s life, such as education, and the other parent will be in charge of religion or health, etc.) Parents sharing parental responsibility are both entitled to access their child’s medical, dental, and school records and information.
The Florida legislature and judiciary support the concept of shared parental responsibility. However, if the parents agree otherwise or if the court finds that shared parental responsibility would be detrimental to a child/ren, sole parental responsibility could be ordered. That would mean that one of the parents has unilateral decision-making authority for the children.
That basically means that we both have an "implied" equal custody over the child if we have a shared parental responsibility, correct? Just sole custody to Mother did not apply it our case, unless it had been explicitly stated in the document.
Last edited by a moderator:
Jackolantern
Registered Users (C)
I figure the underlying idea is that if they don't let illegal immigrant children attend school, they'll just be roaming around idle committing mischief and crime as a result of the combination of being uneducated and having so much idle time.
The same rules don't apply -- they'll look at the combination of parental and child intentions, depending on the age of the child and the overall circumstances.
I expect they won't make an issue of it because there's not much point to it; if they deny the adjustment of status she can just go to Canada to await the I-824 processing and consular interview, and be back in the US within 6 months. It's a discretionary matter, and I figure they'll use their discretion to approve it. It's just that if they decide to make it an issue you don't have much of a defense.
However there is also the issue of priority dates. You haven't mentioned the category of your green card (EB1, EB2, or EB3?) or what your priority date is. That date must be current in order for her to be eligible for the I-485.
Jackolantern
Registered Users (C)
Definitely. I heard a lot about it on the news, but it would be harder for someone to abduct his own child in that age
"Abduction" in such situations doesn't have to be against the child's will. If it's against the other parent's will, and the other parent has some custodial or visitation rights, that can also be an abduction.
For example, in the US if the parents are legally separated or divorced and live in the same state, it is generally illegal for one parent to remove the child from the state without the consent of the other parent.
You will need to get written consent from your ex giving the OK for your daughter to stay with you in the US.
LuciDreamer
Registered Users (C)
My application was based on EB-2 All Chargeability - it is current.
TheRealCanadian
Volunteer Moderator
This. Even if there's something about your situation that doesn't make it 100% legally required, it will save you a tremendous amount of hassle and aggravation. The other option is a court order from Canada amending the custody agreement to give you sole custody.
LuciDreamer
Registered Users (C)
Absolutely. Makes sense to be proactive and I don't think this consent paperwork should be a problem to get. I talked to my ex last night and she said she would agree to sign the paperwork. I will ask her to write me a consent letter to allow our daughter move and stay in the US with her dad, I hope that should be sufficient without the need to go to court and amend the Agreement. The Agreement and divorce took place in the US, therefore, amending it in Canada may be a problem and probably needs to be made in the same location where I reside.
Jackolantern
Registered Users (C)
Ask her to have the consent letter notarized before sending it you.
LuciDreamer
Registered Users (C)
Will do.
LuciDreamer
Registered Users (C)
Hello again, I have a quick urgent question about who needs to sign I-485 on Page 6 - Applicant's Signature. I am pretty sure even if the child is a minor, she still needs to sign it, correct? I saw posts in the forum where applications were RFE'ed because children did not sign them.
We just got the USCIS exam completed and the nurse at the Doctor's office made me sign the I-693 on the first page, because, as she said, the applicant was a minor child, therefore, a parent had to do it. Did she make a mistake and we risk the medicals to be rejected because they were not signed by my daughter?
We just got the USCIS exam completed and the nurse at the Doctor's office made me sign the I-693 on the first page, because, as she said, the applicant was a minor child, therefore, a parent had to do it. Did she make a mistake and we risk the medicals to be rejected because they were not signed by my daughter?
Jackolantern
Registered Users (C)
She's 16, so she's old enough to sign it herself.
LuciDreamer
Registered Users (C)
Which one: I-485 or I-693, or both? Why would the nurse ask me sign it then for her? Should I go back and insist on having the 1st page re-done?
Should I go back and insist on having the 1st page re-done?LuciDreamer
Registered Users (C)
I think I found the answer already, on Page 25 of the CS_Training_Introductory_Session document it says: "For children 14 years and over: The applicant must sign Form I-693" - http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCMQFjAB&url=http%3A%2F%2Fwww.uscis.gov%2FUSCIS%2FResources%2FDesignated%2520Civil%2520Surgeons%2F1_CS_Training_Introductory_Session.ppt&ei=QneJUNX9JZPa8ASV84HwDQ&usg=AFQjCNEfApaH7W71dIZN55jYA-FGwdMaHg&sig2=2JJaFeykCJlEjwNNh2K5ZA&cad=rja
That receptionist at the office made a mistake by not making my daughter sign the form yesterday. I will need to go back to the office to correct it
That receptionist at the office made a mistake by not making my daughter sign the form yesterday. I will need to go back to the office to correct it
Last edited by a moderator:
Jackolantern
Registered Users (C)
Bring a new I-693 with the relevant sections already filled out, in case they won't allow altering the existing one.
LuciDreamer
Registered Users (C)
Thanks Jackolantern, will do. I called the medical office but the doctor was away till tomorrow. They have agreed to correct it either by adding her signature next to mine on the existing form or just redoing the 1st page depending on what the doctor would decide tomorrow.
LuciDreamer
Registered Users (C)
URGENT!!!!!
Kind of bad news.... I just called the USCIS to discuss the follow-to-join situation in my case and talked to the immigration officer there. He said that follow-to-join is usually allowed within 1 year after getting a permanent residency. In my case it is already over 1 year - 1 year and 11 months to be exact. The first question he asked was "Why are you including your daughter now?" I tried to explain that it was a family situation, her mother abandoned the child, she has no place to stay in Canada, etc. But he said that the law would not be in my favor, I could try to apply and lose my processing fee but no guarantees.
If the I-485 is denied, will I lose the fees for good or it could be salvaged by asking to file the motion to reopen?
Any possible suggestions? What should I do in my case, should I find a lawyer, write to my congressman/ombudsman if the application is denied, etc....?
Kind of bad news.... I just called the USCIS to discuss the follow-to-join situation in my case and talked to the immigration officer there. He said that follow-to-join is usually allowed within 1 year after getting a permanent residency. In my case it is already over 1 year - 1 year and 11 months to be exact. The first question he asked was "Why are you including your daughter now?" I tried to explain that it was a family situation, her mother abandoned the child, she has no place to stay in Canada, etc. But he said that the law would not be in my favor, I could try to apply and lose my processing fee but no guarantees.
If the I-485 is denied, will I lose the fees for good or it could be salvaged by asking to file the motion to reopen?
Any possible suggestions? What should I do in my case, should I find a lawyer, write to my congressman/ombudsman if the application is denied, etc....?
Last edited by a moderator:
TheRealCanadian
Volunteer Moderator
Why did you trust what the USCSIS officer said over the phone? There is no restriction AFAIK regarding follow-to-join within a certain time.
LuciDreamer
Registered Users (C)
Thanks TheRealCanadian! As always, people like you, Jackolantern, Nelsona and others always inspire and reinstate partially-shatterred hopes in desperate peoples' minds who are experiencing tricky situations like mine. I also took it with a grain what this guy on the phone said to me because based on his attitude he was not very friendly and conversed in a condescending tone with me. He stepped out for a few mins to consult with someone else, but this phrase made me a bit alarmed: "Why are you applying for her now, not back in 2010? If this case is on my desk, I would ask the same question".
Actually you are probably right, there should be no statutory time period during which the derivative child can join the principal as long as the relationship exists, the principal is alive and the child is under 21. This is what I found online:
The term “following to join,” as used in . . . INA 203(d), permits an alien to obtain a[n] . . . immigrant visa (IV) and the priority date
of the principal alien as long as the alien following to join has the required relationship with the principal alien. There is no
statutory time period during which the following to join alien must apply for a visa and seek admission into the United States.
However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated,
there is no longer a basis to following to join. As an example, a person would no longer qualify as a child “following to join” upon
reaching the age of 21 years (unless they qualify for the benefits of the Child Status Protection Act) or by entering into a
marriage. There is no requirement that the “following to join” alien must take up residence with the principal alien in order to
qualify for the visa. (See 9 FAM 42.42 N11.) The term “following to join,” also applies to a spouse or child following to join a
principal alien who has adjusted status in the United States.
The cross-reference, 9 FAM § 42.42 N.11, “Derivative Status for Spouse or Child,” provides in part as follows:
a. A spouse or child acquired prior to the principal alien’s admission to the United States or the alien’s adjustment to legal
permanent resident (LPR) status, or a child born of a marriage, which existed prior to the principal alien’s admission, or
adjustment, who is following-to-join the principal alien, should be accorded derivative status under INA 203(d). No second
preference petition is required.
Actually you are probably right, there should be no statutory time period during which the derivative child can join the principal as long as the relationship exists, the principal is alive and the child is under 21. This is what I found online:
The term “following to join,” as used in . . . INA 203(d), permits an alien to obtain a[n] . . . immigrant visa (IV) and the priority date
of the principal alien as long as the alien following to join has the required relationship with the principal alien. There is no
statutory time period during which the following to join alien must apply for a visa and seek admission into the United States.
However, if the principal has died or lost status, or the relationship between the principal and derivative has been terminated,
there is no longer a basis to following to join. As an example, a person would no longer qualify as a child “following to join” upon
reaching the age of 21 years (unless they qualify for the benefits of the Child Status Protection Act) or by entering into a
marriage. There is no requirement that the “following to join” alien must take up residence with the principal alien in order to
qualify for the visa. (See 9 FAM 42.42 N11.) The term “following to join,” also applies to a spouse or child following to join a
principal alien who has adjusted status in the United States.
The cross-reference, 9 FAM § 42.42 N.11, “Derivative Status for Spouse or Child,” provides in part as follows:
a. A spouse or child acquired prior to the principal alien’s admission to the United States or the alien’s adjustment to legal
permanent resident (LPR) status, or a child born of a marriage, which existed prior to the principal alien’s admission, or
adjustment, who is following-to-join the principal alien, should be accorded derivative status under INA 203(d). No second
preference petition is required.
Jackolantern
Registered Users (C)
I know the CSPA has that one-year time limit, so it looks like they're right.
On the other hand, I'm not sure if that one-year limit applies to all child derivatives, or only those who are physically over 21 but using the CSPA to adjust their age to below 21 for immigration purposes.
If the I-485 is denied, you can file a Motion to Reopen, but that also costs money. And the MTR must have a valid legal basis or it will be rejected. If the one-year deadline actually applies to her situation, your MTR will fail.
Filing the I-485 also raises the risk that she will be deported soon after I-485 denial. While they don't aggressively pursue minors who are out of status, they are known to initiate removal proceedings for children who have brought themselves to the attention of the immigration authorities. The I-485 denial may be quickly followed by a Notice to Appear, which initiates the removal proceedings.
If the derivative I-485 route is not viable, you'll be stuck with filing I-130 for her and sending her back to Canada (or another country) to await consular processing for her green card. You can't file I-130 and I-485 together for her because you're not a citizen, and she can't stay in the US legally for the 2 years it takes for the visa bulletin to move enough to qualify her for adjustment of status. So you have to figure out what to do with her from now until about 2 years later when she'll become eligible for an immigrant visa, whether you send her to another relative in Canada and send money to pay for expenses, or take legal action to make her mother take her back, or some other option like boarding school in Canada.
Whatever you do, if she's not eligible for an I-485 now, make sure she leaves the US before she's accumulated 180 days of unlawful presence after her 18th birthday, because if she leaves later than that the 3-year ban would kick in.
It's probably a good idea to meet with an immigration lawyer to discuss the situation regarding her current I-485 eligibility or lack thereof and options if she's not eligible. Tell the lawyer you won't use them to go forward with the case, you only want a one-time consultation to get their opinion. Otherwise you might get a biased answer from a lawyer who wants to take your money to pursue a hopeless case.
On the other hand, I'm not sure if that one-year limit applies to all child derivatives, or only those who are physically over 21 but using the CSPA to adjust their age to below 21 for immigration purposes.
If the I-485 is denied, you can file a Motion to Reopen, but that also costs money. And the MTR must have a valid legal basis or it will be rejected. If the one-year deadline actually applies to her situation, your MTR will fail.
Filing the I-485 also raises the risk that she will be deported soon after I-485 denial. While they don't aggressively pursue minors who are out of status, they are known to initiate removal proceedings for children who have brought themselves to the attention of the immigration authorities. The I-485 denial may be quickly followed by a Notice to Appear, which initiates the removal proceedings.
If the derivative I-485 route is not viable, you'll be stuck with filing I-130 for her and sending her back to Canada (or another country) to await consular processing for her green card. You can't file I-130 and I-485 together for her because you're not a citizen, and she can't stay in the US legally for the 2 years it takes for the visa bulletin to move enough to qualify her for adjustment of status. So you have to figure out what to do with her from now until about 2 years later when she'll become eligible for an immigrant visa, whether you send her to another relative in Canada and send money to pay for expenses, or take legal action to make her mother take her back, or some other option like boarding school in Canada.
Whatever you do, if she's not eligible for an I-485 now, make sure she leaves the US before she's accumulated 180 days of unlawful presence after her 18th birthday, because if she leaves later than that the 3-year ban would kick in.
It's probably a good idea to meet with an immigration lawyer to discuss the situation regarding her current I-485 eligibility or lack thereof and options if she's not eligible. Tell the lawyer you won't use them to go forward with the case, you only want a one-time consultation to get their opinion. Otherwise you might get a biased answer from a lawyer who wants to take your money to pursue a hopeless case.
Last edited by a moderator: