Adjustment of status v. Consular processing (new baby on the way)

[Jamie Padilla]

Hello,

We are about to file our I-130s for my husband and stepson (of whom he has full legal custody). We live in Mexico, but since I have a telecommuting/travel-based job, I live in CA on paper (continue to pay my taxes there, etc). We've been doing this for a little over two years now and have made the decision to officially relocate back to the States. I am due to give birth in 6 months, and would like to do so there. I have read that consular processing is usually quicker than an adjustment of status. So what I would LIKE to do is relocate before baby is due, have my husband and stepson come in on their non-immigrant visas (they have been going back and forth for awhile now, so I'm hoping that they'd have no problems despite the pending processes), and then they can go back down to Mexico for consular processing when their appointment comes up (or before the 90 day limit).

I would greatly appreciate it if any more experienced/informed folks out there could share any potential issues with my preferred approach or guide me a bit on what might be a better option in our situation. And I thank you in advance for sharing!

Cheers,
Jamie

[Jamie Padilla]

I realized I failed to mention that I am a US citizen. Both my husband and stepson are Mexican citizens. Given the proximity, we've been splitting our time between both countries since marrying (them as tourists, me... well... I have an address and a job in CA, so I'm kind of straddling it here). I'm not clear on our best options in terms of process, but the outcome I'm looking for is that we can all be together there (stateside) for baby's due date. If they need to go back to Mexico temporarily, it's not that big of a deal. Chances are, we can all do that together (I'm mobile and again... proximity is in our favor). But I'm trying to shift home base from Mexico to US, and my husband plans to work in US upon receiving the green light to do so.

Again, many, MANY thanks!

[rayb]

As a US citizen petitioner, you would have to submit I-130 petitions separately for your husband and child (no derivative visa eligibility for the child since husband is an "immediate priority" status). But unless the husband has adopted the child, which would make the child your stepchild, you have no legal basis for petitioning the child.

If I have this right so far, your husband would have to petition the stepchild after having Green Card status in the U.S. But since your husband is no longer married to the mother of the child, he may have lost his legal basis to petition the child.

If you have already been aware of the above issues, perhaps you can tell us what you believe you can do to get the child to the U.S.

The above is only my opinion about status options, and not legal advice. Better advice could be given if you provide more information about the child's legal relationship to your husband, i.e., if mother of child is deceased.

--Ray B

Hello,

We are about to file our I-130s for my husband and stepson (of whom he has full legal custody). We live in Mexico, but since I have a telecommuting/travel-based job, I live in CA on paper (continue to pay my taxes there, etc). We've been doing this for a little over two years now and have made the decision to officially relocate back to the States. I am due to give birth in 6 months, and would like to do so there. I have read that consular processing is usually quicker than an adjustment of status. So what I would LIKE to do is relocate before baby is due, have my husband and stepson come in on their non-immigrant visas (they have been going back and forth for awhile now, so I'm hoping that they'd have no problems despite the pending processes), and then they can go back down to Mexico for consular processing when their appointment comes up (or before the 90 day limit).

I would greatly appreciate it if any more experienced/informed folks out there could share any potential issues with my preferred approach or guide me a bit on what might be a better option in our situation. And I thank you in advance for sharing!

Cheers,
Jamie

[Jamie Padilla]

First of all, thank you kindly for so generously sharing your obvious expertise (especially with a complete stranger). This is very helpful. I actually did NOT realize that my husband would have to adopt his son in order for him to legally be considered my stepchild and thus provide me with a basis on which I can file for him to immigrate. My stepson's mother is not dead, and actually, she is very supportive of this move. Furthermore, my husband has what's called "patria postedad", which means sole custody. I'm not sure if any of this matters, but I'll inquire further on account of you raising this.

Hopefully this doesn't turn out to be a major hurdle. There is some urgency for us on account of my expectant state. My current role at work requires me to be stateside much more than abroad in comparison to previous years, meaning much more frequent and lengthier absences than before. Switching our home base to CA would mean keeping our family together during the delicate period of pregnancy, child birth, and the early days post-birth. I was initially thinking that filing the I-130 and then adjustment of status made more sense of us, but I've been told (and read somewhere online) that consular processing from Mexico can actually be quicker. If my husband were to get a work permit while awaiting the issuing of his green card, though, then I'm not sure what the downside would be to doing the adjustment of status. My info is pretty limited, however, sense this is a very recent decision for us.

Again, thanks!

[Jamie Padilla]

Upon a cursory review of Mexico's law on Patria Postedad, I get the impression that when granted solely to one parent, it terminates the other's rights to make decisions about the child in question. This is also how my husband explained it to me. Regardless, we'd have the mother's consent anyway. But if I'm understanding you, my husband would have to petition for his son to join him in the States rather than me filing an I-130 for him as an immediate relative.

[rayb]

Jamie,

As an afterthought....the "Patria postedad" might not be recognized for U.S. immigration purposes, since "patria postedad" is a Mexican legal status, the closest which might be "guardianship" in the U.S.,not a legal basis for immigration purposes.

I believe that the legal requirements to make the child eligible for U.S. immigration while in Mexico could be insurmountable, and given your urgency to prepare for your birth delivery, it might make more sense to get both of them in the U.S. with their visitor visas, then process your husband's status while in U.S., and later use a legal professional to change the child's status by adoption (the child's age might also be an issue for later status changes with USCIS).

As an aside, I've dealt with attorneys in both Mexico and the Philippines (because my two marriages originated in two different countries), and getting a Mexican attorney involved in getting the child's legal status acceptable for U.S. immigration purposes will most likely be throwing money away.

My advice is not intended as legal advice, but only a recommendation to solve your immediate problem and to buy you some time.

--Ray B

First of all, thank you kindly for so generously sharing your obvious expertise (especially with a complete stranger). This is very helpful. I actually did NOT realize that my husband would have to adopt his son in order for him to legally be considered my stepchild and thus provide me with a basis on which I can file for him to immigrate. My stepson's mother is not dead, and actually, she is very supportive of this move. Furthermore, my husband has what's called "patria postedad", which means sole custody. I'm not sure if any of this matters, but I'll inquire further on account of you raising this.

Hopefully this doesn't turn out to be a major hurdle. There is some urgency for us on account of my expectant state. My current role at work requires me to be stateside much more than abroad in comparison to previous years, meaning much more frequent and lengthier absences than before. Switching our home base to CA would mean keeping our family together during the delicate period of pregnancy, child birth, and the early days post-birth. I was initially thinking that filing the I-130 and then adjustment of status made more sense of us, but I've been told (and read somewhere online) that consular processing from Mexico can actually be quicker. If my husband were to get a work permit while awaiting the issuing of his green card, though, then I'm not sure what the downside would be to doing the adjustment of status. My info is pretty limited, however, sense this is a very recent decision for us.

Again, thanks!

[rayb]

Jamie,

In response to your post below..

While your husband may now have the legal right to make all decisions for the child's welfare, and excluding the child's mother, the child might still not meet the requirements for U.S. immigration purposes. I believe the closest that the "Patria Postedad" status can be interpreted in the U.S. would be our "legal guardianship," and this is one reason why legal guardians so often proceed with adoption, in order to obtain full rights to making decisions regarding the chlid's welfare.

While it would be faster for you to petition a child for whom you have a legal petitionable relationship, I only suggested that the husband be the one to petition the child since he already has legal authority for the child, which might allow for some discretionary exception by USCIS in the future.

--Ray B

Upon a cursory review of Mexico's law on Patria Postedad, I get the impression that when granted solely to one parent, it terminates the other's rights to make decisions about the child in question. This is also how my husband explained it to me. Regardless, we'd have the mother's consent anyway. But if I'm understanding you, my husband would have to petition for his son to join him in the States rather than me filing an I-130 for him as an immediate relative.

[Jamie Padilla]

rayb,

I sincerely appreciate your insights here. Worst case scenario for us would be that we wind up procedurally "stuck" when it's time for the baby to come, and separated during that time. While having them enter on their tourist visas and subsequently applying for my husband's adjustment stateside is likely to pose its own challenges (of which, I'll need to do further exploration), it seems this might be our best bet for staying together when it's most critical.

Again, it's very generous of you to invest this kind of time and attention to the rest of us poor saps trying to navigate this complicated world of US immigration. I'm sure you and others participating in this way in this online community are racking up the karma points!

Cheers,
Jamie

[Jamie Padilla]

Having read a bit more, it does appear that I can petition for my stepson's adjustment of status (http://www.uscis.gov/family/family-u...nent-residents). Just wanted to share in case anybody else read this who may be in a similar situation. Despite this eligibility, however, I'm not going to dismiss the possible obstacles rayb alerted me to here. Going to keep digging around and will be happy to share as I go (and continue to receive input as well!) in case it might be helpful to others at some point...

[rayb]

If the legal stepchild relationship between your husband and the child continues to exist, you may succeed in petitioning the child as your stepchild.

--Ray B

Having read a bit more, it does appear that I can petition for my stepson's adjustment of status (http://www.uscis.gov/family/family-u...nent-residents). Just wanted to share in case anybody else read this who may be in a similar situation. Despite this eligibility, however, I'm not going to dismiss the possible obstacles rayb alerted me to here. Going to keep digging around and will be happy to share as I go (and continue to receive input as well!) in case it might be helpful to others at some point...

[rayb]

Jamie,

Since this thread began, I did a little legal precedent checking, and I am now leaning towards you not having any significant problem petitioning the child as your stepchild. The "test" seems to be whether a true stepparent relationship continues to exist after the prior marriage was terminated. In your case, this seems to be what has been happening with your husband and the child.

What is unusual about your situation, however, is that your stepchild was not the natural child of your husband, so you might expect a challenge during processing by USCIS or the NVC (or even at the local USCIS interview if processed entirely in the U.S. If challenged you may have to enlist a qualified immigration attorney to research and proffer a solid precedent-based response.

--Ray B

If the legal stepchild relationship between your husband and the child continues to exist, you may succeed in petitioning the child as your stepchild.

--Ray B

[Jamie Padilla]

It was very kind of you to inquire like that. I must have miscommunicated. My stepson IS my husband's biological child and he is the father on his son's birth certificate, etc. Also, my husband was never married to my stepson's mother, so clearly we can provide no proof of a termination of a marriage which never existed. Again, thanks!

Per the latest round of info digging and brain racking, looks like we are going to proceed as follows (unless new information indicates this is not optimal):

- I will file I 130s for both my husband and my stepson at the Mexico City field office ASAP (they have a processing time of only 1 month vs the 5 months for the stateside USCIS offices). Since I continue to be employed in the US and have my mailing address there, I'm assuming I should have no problems establishing my ties, etc.
- Go through next steps for green cards with NVC

If they don't have their immigrant visas in time for birth of new baby, they'll travel to US on their tourist visas. If they face any questioning, I don't think they'll have trouble demonstrating intent to go back (we'll get round trip tickets, my husband can show proof of maintaining a residency, etc). Once in US, not sure if it would make most sense to switch to an adjustment of status if their immigrant visa appointment will take place soon. It's just Mexico, and we'll be in CA, so.... hop, skip, and a jump.

[rayb]

Jamie,

I had been making the assumption all along that the child was stepson of your husband. I misinterpreted your first message. There is absolutely no problem with petitioning YOUR stepson, who is actually the natural child of your husband.

--Ray B

It was very kind of you to inquire like that. I must have miscommunicated. My stepson IS my husband's biological child and he is the father on his son's birth certificate, etc. Also, my husband was never married to my stepson's mother, so clearly we can provide no proof of a termination of a marriage which never existed. Again, thanks!

Per the latest round of info digging and brain racking, looks like we are going to proceed as follows (unless new information indicates this is not optimal):

- I will file I 130s for both my husband and my stepson at the Mexico City field office ASAP (they have a processing time of only 1 month vs the 5 months for the stateside USCIS offices). Since I continue to be employed in the US and have my mailing address there, I'm assuming I should have no problems establishing my ties, etc.
- Go through next steps for green cards with NVC

If they don't have their immigrant visas in time for birth of new baby, they'll travel to US on their tourist visas. If they face any questioning, I don't think they'll have trouble demonstrating intent to go back (we'll get round trip tickets, my husband can show proof of maintaining a residency, etc). Once in US, not sure if it would make most sense to switch to an adjustment of status if their immigrant visa appointment will take place soon. It's just Mexico, and we'll be in CA, so.... hop, skip, and a jump.