I-130 denial decision notice

[Matt01]

Hello.
I filled I-130 for my wife and her two sons. Also then I filled I-129F for wife and did put her sons in. So I received the petition 130 approved for her and her yonger son. I got I-129F approved. But USCIS mailed a notice to me for her old son.
"denial decision notice for this case I130 IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN. The notice explains why the denial decision was made and the options that may be available to you. If you have not received this notice within 30 days of the August 5, 2008, please call customer service at 1-800-375-5283 for further assistance. notice of appeal to the board of immigration appeals from a decision of a uscis officer this notice of appeal must be filed with the department of homeland security service,[dhs] u.s. citizenship and immigration service [ uscis] with in 30 calender days after service of the decision of the uscis officer. please read the complete instrustion on the back of this form. The petitioner filed form I-130 petiton for alien relative, for classification of the beneficiary under section 201[b][2][a][i] of the immigration and nationality act , as a child of a citizen of the united states. section101[b] of the act states in pertinent part;
[1] the term' child' means an unmarried person under twenty - one years of age who is-- [b] a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; The record shows the benificiary was born on November 23, 1988 and the marriage that created the steprelationship occurred on march 28, 2008. the step-relationship between the petitioner and beneficiary is not valid for immigration purpose because it was established after ther beneficiary's eigteenth birthday. as such , the beneficiary is ineligible for classification under section 201[b][2][a][i] of the act. the petition is denied"

Then USCIS sent her case to NVC.
The NVC has completed its processing of the visa petition you mentioned in
your letter and has forwarded the petition to the assigned US
Embassy/Consulate General for further processing.
Right now she and her boys are waiting for a Interview in Embassy for K3/K4

The questions are here.

Can her son change his status in US when he is here? If his I-130 is denial how can he change status? If my wife will change her status first then will his K4 unlegal?
Please help me and explain what have I do for her son to change his status. Now he is 19 years old.

Matt

[Amir]

The older son isn't admissible so there is no change of status to be concerned about in the US, at least as far as this I-130 and associated K4 are concerned.

At least the CIS gives you exact section and subsections of the law it's denials are based upon, unlike consulates, where officials are the law. Last time I checked, such establishments were informally referred to as 'The Banana Republics.'

[C4us]

Once your wife gets her GC, she can file for her son as child of LPR. Once he is over 21, he will need to go to classification of an unmarried child over 21. Once she gets citizenship, she can upgrade petition to unmarried child of citizen.

He should get his education so an H1B can be filed by a potential employer. That is the only way he can come before the priority date for his petition type is reached.

You may want to work with an immigration attorney to make certain there are no mistakes in the process.

[nichole]

If the I-129F is processed first and you go with that to get the K3 and K4 visas, then he should be able to adjust under her. It's the I-130 that doesn't allow for the reasons stated. It's kinda of a loophole where a fiance can bring and adjust a 19 year old, but a spouse can't. But spouses processing with a K3 are treated by the fiance rules. But if the I-130 is approved first, then I have read that you can no longer get the K3 and have to do CR1/IR1 visa and remain in the foreign country for the whole adjustment of status.

So the notice from the I-130 is correct. But you have to find out where you stand right now and if the I-129F can still stand and she can get the K3 and K4s for the children. If he can be issued a K4, then I think he can adjust on that in the US.

She applying for him later when she's a LPR will take many, many years on a wait list.