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Can my US Citizen husband file for I-130 for my son who is…

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Can my US Citizen husband...
Can my US Citizen husband file for I-130 for my son who is now 19 years old (I married my husband when he was over 18 years old. Is the definition of stepchild applies to him also, that says marriage date should be before he reach his 18 years old.) Is there any other way to for him to avoid the age out? I am just in the process of preparing my AOS so it might be late for him if I will be the one his mother to file for his I-130 after I received my greencard. I married my husband last february 2, 2009, we are here in the US last april 23, 2010, my 1-130 was approved already in the Phils, but I continue my K3/k4 visa.
Submitted: 8 years ago.Category: Immigration Law
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6/25/2010
Immigration Lawyer: Judith Ludwic, Immigration Lawyer replied 8 years ago
Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 30,024
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Your husband does not qualify as an immediate relative to file for your son. Your son was 18+ and therefore does not fall under the definition of step-son. If you had come in under the K1/2 it would have been different since no I-130 has to be filed. He could have filed for adjustment of status.

So you will have to file for you child.

He cannot file an extension of his K4. He may want to apply for an F-1 visa and go to school while waiting for his priority date under your petition.

 

Judith

 

promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it's associated sites. You are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed in this public forum.

 

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Customer reply replied 8 years ago

Who and when can we file his K4 visa, I read that we can do that, I need clarification. thanks

Immigration Lawyer: Judith Ludwic, Immigration Lawyer replied 8 years ago

I don't understand what you are asking.

 

Judith

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Customer reply replied 8 years ago
I read about the I-539, for the extension of stay, Is he qualified to file, what would be the best reason for them to approve my request for my son. I am sorry I need to know more coz, I am aware already of your answer. I am looking for an alternative. Next question, why would my son be allowed to stay for only one year. He arrived April 23, 2010 and will stay only up April 22, 2011. Is one year enough for him to adjust his status, if I will be the one doing his I-130 after my AOS approval. I am really confused. Please be patient, thanks
Immigration Lawyer: Judith Ludwic, Immigration Lawyer replied 8 years ago

The two-year period may be extended as long as the child properly applied for a green card and has not neglected his or her efforts in pursuing the green card, but for some reason the green card has still not been issued.

Since your son cannot apply for his adjustment of status he does not qualify for an extension.

One year will not be enough for him to adjust status. It iwll take 2 years for him to be eligible for a visanumber based on your petition after you adjust.

This is the current priority date 01JUL08

Finally, the immigrant parent, upon adjusting status will no longer be in K-3 status, therefore, the child will no longer be in lawful K-4 status, since this is merely a derivative classification, and that child would begin to accrue unlawful presence.

Your son will have to depart the US upon your adjustment because you are no longer a K and since his K depends on yours, he looses his status.

That is why I suggested to you that he immediately apply for an F1 student visa back in the Philippines before you adjust.

 

Judith

 

promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it's associated sites. You are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed in this public forum.

 

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Customer reply replied 8 years ago
So why they allow my older son to come to US on a K4 Visa if they know that he cant adjust his status and as well extend his stay here.

What if my AOS will be approved by Nov.this year, can I still file his I-130? cuz he is allowed to stay until April 22, 2010 and his k4 visa is valid until his 21st bday.

Cant he not apply for F1 visa here now, it is necessary he return to the Phils.
Immigration Lawyer: Judith Ludwic, Immigration Lawyer replied 8 years ago

I can't tell you why the law is as it is, I can only tell you what the law says. I agree it makes no sense, but I don't make the laws.

 

Your son't K4 becomes invalid when you are no longer a K3 and have adjusted status.

 

NO, he cann't apply for a change of status in the US from a K to any other visa type.

 

Judith

promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it's associated sites. You are irrevocably waiving any right to privacy, confidentiality and attorney-client privilege concerning the matters discussed in this public forum.

 

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