US Citizen Filing for Son - Age 17

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needCZ

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I am a US Citizen residing in US. I came to US on H1B visa and then later filed for Green Card. My son is 17 years old now and resides in India. He was in US briefly on H4 visa many years ago along with his mother. I had filed for Green Card for both of them. Son being minor received the card while mother did not as she did not go to USCIS office to take the card. His mother took him to India and never came back. Later I filed for divorce.

Now that I am a US Citizen, I want to bring my son to US. If he is brought to US before he turns 18 then I can apply for US Citizenship for him. Therefore, I am attempting to get him here the quickest.

What do I need to do? How long would it take to get him in US?
 
Son being minor received the card while mother did not as she did not go to USCIS office to take the card.
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Green cards are not picked up at a USCIS office, they're delivered by mail. Do you mean she didn't go to the consulate in India for the interview?

Was your son ever in the US as a permanent resident? If yes, were you a US citizen at that time?

Or was he merely approved for the green card at the consulate in India but didn't enter the US after that? How long ago did he leave the US?

Your answers will affect the options for bringing up. He might even already be a US citizen and you don't know it.
 
There was no Consular Processing. When I went for my GC Interview in USCIS office I was asked about son. As he was minor, the officer did not ask me why he is not with me. However, both son and ex-spouse were in India at that time and had just left after taking Advance Parole. This was around 10 years ago.

I received the GC in mail for me and my son. Son and ex-spouse never came to US after the GC was approved. So technically, son never stayed in US as a Permanent Resident. Ex-spouse never wanted to be in US and she does not want her son to be in US.

Yes, he could already be a US Citizen and I do not know about it. All I need to do is file for his US Passport. But I am not sure.
 
He's not a citizen, because he was never in the US as a permenent resident.

Was it less than a year since he left the US? If yes, he can simply use the green card to return to the US, and then once he starts living with you in the US he'd become an instant citizen if he's still under 18 and you were granted legal custody according to the divorce agreement.
 
US Citizen Filing for Son - Age 17

Jackolantern said:
He's not a citizen, because he was never in the US as a permenent resident.

Was it less than a year since he left the US? If yes, he can simply use the green card to return to the US, and then once he starts living with you in the US he'd become an instant citizen if he's still under 18 and you were granted legal custody according to the divorce agreement.
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No, he left US approx 10 years ago. He was a kid when he left but now he understands and wants to be in US. Now the question is, how do I bring him back?
 
He'll have to redo the green card process. File I-130 to initiate the process, with a consulate in India selected for question 22. 6-12 months later, both you and he will file some additional paperwork and he'll be interviewed at the consulate. After approval at the consulate, upon entering the US he'll become a permanent resident (and a citizen if he's still under 18).

Anywhere that the forms ask for his A#, write the same old A# from his I-485 or green card so they can easily find his old records, otherwise the case may be delayed.

If he's going to immigrate before age 18, you may need some additional paperwork with the Indian government and your ex-wife to transfer legal custody to you.
 
How long to process I-130?

Jackolantern said:
He'll have to redo the green card process. File I-130 to initiate the process, with a consulate in India selected for question 22. 6-12 months later, both you and he will file some additional paperwork and he'll be interviewed at the consulate. After approval at the consulate, upon entering the US he'll become a permanent resident (and a citizen if he's still under 18).

Anywhere that the forms ask for his A#, write the same old A# from his I-485 or green card so they can easily find his old records, otherwise the case may be delayed.

If he's going to immigrate before age 18, you may need some additional paperwork with the Indian government and your ex-wife to transfer legal custody to you.
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Thanks Jacko!

He is 6 months away to turn 18. So we have 6 months to complete the process. However, will he get GC after filing I-130? I'm afraid by the time he gets here in US, he will be over 18. By then, he will lose chance to immediately became US Citizen.
 
I-130 is only the first stage. The I-130 itself will probably be approved in less than 6 months, but after I-130 approval the case must be forwarded to the consulate and you and he will both file some additional paperwork while waiting for his interview. So it's unlikely that he'll be able to complete the whole process before turning 18.

You would also need to get legal custody before he's 18; without you having legal custody, he won't derive citizenship through you even if he's physically in the US with a green card. Hopefully his mother will allow custody to be transferred to you without a court battle.
 
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I-130 and Priority Dates - F1 Category

Jackolantern said:
I-130 is only the first stage. The I-130 itself will probably be approved in less than 6 months, but after I-130 approval the case must be forwarded to the consulate and you and he will both file some additional paperwork while waiting for his interview. So it's unlikely that he'll be able to complete the whole process before turning 18.

You would also need to get legal custody before he's 18; without you having legal custody, he won't derive citizenship through you even if he's physically in the US with a green card. Hopefully his mother will allow custody to be transferred to you without a court battle.
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Jacko ! Thank you gain for your help.

Right now, we will keep the legal custody problem as "resolved" for the sake of discussion otherwise I will have to wait until he turns 18. By then the custody issue will not arise.

I checked up that Visa Bulletin shows a Priority Date of Dec 22, 2005 in Family Sponsored Category F1 for Unmarried Sons and Daughters. So is that date applicable to me (him)? If it does then it will take years for him to come here.
 
You're a citizen and he's under 21, so those priority dates don't matter to you ... once you file the application it can proceed to completion without regard for priority dates.

The F1 category is for Unmarried Sons and Daughters who are 21 or older, so he's not in that category (yet).
 
I-130 and CSPA

Jackolantern said:
You're a citizen and he's under 21, so those priority dates don't matter to you ... once you file the application it can proceed to completion without regard for priority dates.

The F1 category is for Unmarried Sons and Daughters who are 21 or older, so he's not in that category (yet).
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Thanks again Jackolantern!

I checked up the processing time for TSC for I-130. Currently they are processing June 01, 2012 cases, that is 8 months away. So if I file for I-130 today, it may take more than 6 months to get approval. By then my son would cross 18 years of age. The good news is, I won't need to get into the custody battle but the bad news is the son would not get derivative Citizenship. Will CSPA (Child Status Protection Act) or similar can apply to him to protect a filing date before 18?
 
needCZ said:
I checked up the processing time for TSC for I-130. Currently they are processing June 01, 2012 cases, that is 8 months away. So if I file for I-130 today, it may take more than 6 months to get approval.
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And even if the I-130 approved in 4 or 5 months, the time for the case to be forwarded to the consulate and complete the remaining formalities and interview would probably stretch the total time beyond 6 months.

The good news is, I won't need to get into the custody battle but the bad news is the son would not get derivative Citizenship. Will CSPA (Child Status Protection Act) or similar can apply to him to protect a filing date before 18?
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CSPA only protects eligibility to remain in a specific category for pursuing a green card; it doesn't apply to derivative citizenship.
 
After I-130, Visa or Green Card?

Thanks Jackolantern a million !

If the total time for processing after filing for I-130 is going to take up to a year before my son gets an interview then there is no point to hurry up and bring him here before the age 18 (because of possible Custody battle).

But once approved (which I think he will very likely be), would he get a visa or a Green Card?
 
It's not impossible to complete the whole process in 6 months. Sometimes the I-130 is approved as fast as 3 months, and then the remaining processing and consular interview may happen within another 3 months.

Try to convince his mother to give up custody for his sake. Show her that she has nothing to gain by holding on to custody -- if she keeps custody, he goes to the US anyway within a few weeks or months after turning 18.

But once approved (which I think he will very likely be), would he get a visa or a Green Card?
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If the I-130 is approved, and then he's approved at the consular interview, he'll be given an immigrant visa in his passport. Upon entering the US with that visa he'll become a permanent resident, and the green card will be delivered about a month after arrival (and it will be backdated to his arrival date with the immigrant visa).
 
How long for US Citizen?

It is a good news that he will get GC soon after arrival. But how long would he need to wait till he is eligible to apply for US Citizenship? Is it 3 years or 5 years?
 
needCZ said:
It is a good news that he will get GC soon after arrival. But how long would he need to wait till he is eligible to apply for US Citizenship? Is it 3 years or 5 years?
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If you have legal custody and he arrives with an immigrant visa before age 18, he'll immediately become a US citizen. Then he can apply for official recognition of his citizenship (US passport and/or N-600) anytime after that (even after turning 18).

But if you don't get legal custody, or he becomes a permanent resident after his 18th birthday, he'll have to wait the usual 5 years (or 3 years if he gets married to a US citizen, but I don't think you're expecting that to happen anytime soon).
 
Sb-1

I am thinking of filing SB-1 visa.
"The alien’s stay abroad was for reasons beyond the alien’s control and for which the alien was not responsible."

He was a child and his mother took him to India. I had all the intention for him to reside with me permanently and hence applied for his GC. He did get his GC too but before that his mother took him. My son intends to be in US but this act of his mother was beyond his control.

Based on this fact (and assuming his mother gives custody) will he be able to come to US? This route would be faster than I-130.
 
The SB-1 approach has some problems:

1. He's been gone for 10 years. The SB-1 requires that the intention to maintain permanent resident status was never abandoned; it's not enough that the intention is there at the time of applying for the SB-1. So even if you get custody tomorrow, they're going to ask about what you have done in the previous 10 years to try to regain custody and preserve his green card. Have you contacted the consulate in the past 10 years for any assistance with his status? Have you filed anything with the Indian courts in the past 10 years to challenge the mother's custody? Did you fight to keep custody during the divorce proceedings? If you voluntarily gave up custody, that removes support for your claim that you intended to keep him in the US.

2. Although the SB-1 should normally be decided within 1 or 2 months, without you having custody they'll probably refuse to grant the SB-1 visa before he's 18, and if you don't have legal custody he won't be eligible for derivative citizenship even if he returns to the US before 18.

3. The plain language of the regulation (quoted below) requires that he already had permanent resident status at the time of departing the US. But he left the US on Advance Parole with a pending I-485, so he obviously was not a permanent resident when he physically left the US. And he was never physically inside the US since his green card was approved, so that may mean he was never admitted as a permanent resident. You'll need a good lawyer who can mince words and court cases to argue for interpretations of "departure" and "lawfully admitted for permanent residence" that are favorable to his situation. I know there was a recent court case (Matter of Arrabally and Yerrabelly) about the definition of "departure" in the context of traveling with Advance Parole, but I don't know if it can be applied to this situation.

I expect the consulate won't agree with your lawyer's creative interpretations, so the SB-1 would be initially denied, forcing you to fight the denial in an appeal. By the time that gets resolved, he's 18 or 19.


http://www.law.cornell.edu/cfr/text/22/42.22
§ 42.22
Returning resident aliens.
(a) Requirements for returning resident status. An alien shall be classifiable as a special immigrant under INA 101(a)(27)(A) if the consular officer is satisfied from the evidence presented that:
(1) The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States;
(2) The alien departed from the United States with the intention of returning and has not abandoned this intention; and
(3) The alien is returning to the United States from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the alien's control and for which the alien was not responsible.
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http://travel.state.gov/visa/immigrants/info/info_1333.html
Step 1 - Qualifying for Returning Resident Status

Under provisions of immigration law, to qualify for returning resident status, you will need to prove to the Consular Officer that you:

Had the status of a lawful permanent resident at the time of departure from the U.S.;
Departed from the U.S. with the intention of returning and have not abandoned this intention; and
Are returning to the U.S. from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you were not responsible.
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What might work to get him here before age 18 is to file the I-130 with a request to expedite it on the basis that he's about to turn 18 and is about to age out of eligibility for derivative citizenship under the Child Citizenship Act. Sometimes they are willing to expedite for situations like this. Consider having a lawyer write the letter, so they'll probably take it more seriously. The letter should also explain that he previously had an adjustment of status application that was approved, but he left the US in xx/200x with his mother and never returned, otherwise they might be confused when they look in the system and see his green card and wonder why you're filing I-130 for him. If you have the 13-character case number for his I-485, include that in the letter so they can look up his case more easily.

Make sure all required documents are there so there is no delay with them asking for extra documents -- in particular his birth certificate with your name on it, and your marriage certificate and divorce decree to show that you were still married to his mother when he was born, otherwise they may request more documents for proof of paternity.

With expediting, the I-130 could get approved in 2 months. Then after I-130 approval, hopefully they'll forward the case to the consulate quickly and he'll get an interview at the consulate before he's 18.

Meanwhile, work on getting his mother to give up custody as of 1 or 2 months before his 18th birthday. Arrange with a lawyer in India to interact with her and the courts to make it official before he's 18.
 
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