Fragger

Hello everyone,

This is my situation, my Dad is about to turn a citizen of US, and he is thinking of filing the K3(my mother, back home) and K4(my sister and I). Here is the problem though, one of the children(me) in the petition for my mother, is over here, on a non-immigrant visa. If my father applies for the K3 and K4 visa, it will ONLY work for my mother and sister, RIGHT? If so, what can my father do in order for me to get a similar status like the "K" status, that is, live here till my pending K4, and also be allowed to work. Will he have to file a change of status or must I go back to my country. Remember, I'm a minor, who is included in the I-130 petition for my mother. Thank you in advance!

John Smith

It all depends on your age and your marital status, since you are a minor
you are covered with your mother.

"Fragger" wrote in message
news:[email protected]...
    > Hello everyone,
    > This is my situation, my Dad is about to turn a citizen of US, and he is
    > thinking of filing the K3(my mother, back home) and K4(my sister and I).
    > Here is the problem though, one of the children(me) in the petition for
    > my mother, is over here, on a non-immigrant visa. If my father applies
    > for the K3 and K4 visa, it will ONLY work for my mother and sister,
    > RIGHT? If so, what can my father do in order for me to get a similar
    > status like the "K" status, that is, live here till my pending K4, and
    > also be allowed to work. Will he have to file a change of status or must
    > I go back to my country. Remember, I'm a minor, who is included in the
    > I-130 petition for my mother. Thank you in advance!
    > --
    > Posted via http://britishexpats.com

Fragger

So... exactly what will my father have to do for me? I mean, will have to file a change of status for me, or I have to go back to come along with my family to get the K status? If I have to file change of status, how long would that be valid for and will I be permitted to work? Thanks!

Sylvia Ottemoeller

"Fragger" wrote in message
news:[email protected]...

    > This is my situation, my Dad is about to turn a citizen of US, and he is
    > thinking of filing the K3(my mother, back home) and K4(my sister and I).
    > Here is the problem though, one of the children(me) in the petition for
    > my mother, is over here, on a non-immigrant visa. If my father applies
    > for the K3 and K4 visa, it will ONLY work for my mother and sister,
    > RIGHT? If so, what can my father do in order for me to get a similar
    > status like the "K" status, that is, live here till my pending K4, and
    > also be allowed to work. Will he have to file a change of status or must
    > I go back to my country. Remember, I'm a minor, who is included in the
    > I-130 petition for my mother. Thank you in advance!

If your nonimmigrant status will last until the day your Dad becomes a
citizen, and you are still a minor, then this is what he and you should
probably do: file Form I-130 (signed by him)/I-485(signed by you), and
I-765 and I-131 signed by you, at the INS district office for your
residence.

Actually, even if your status does not last that long, and you overstay, you
can do the above after your father becomes a citizen, as long as you are
under 21. As an immediate relative, you can have forgiveness for certain
violations of status, for the purpose of filing Form I-485.

I am not sure how the K-3 and K-4 would work for you. You could leave the
U.S. and appear at the consular K-3/K-4 visa interview with your mother and
sister, and enter the U.S. like your mother and sister.

If you don't leave the U.S., I suspect that you would have to wait, and file
Form I-539, asking to change status from whatever to K-4, after your mother
actually enters the U.S. in K-3 status after obtaining the visa at the
consular post. It's not worth doing this if you can do the above
I-130/I-485 process.

Fragger

Thank you very much for your advice, but I'm not quite sure why my father needs to file an I-130(already filed by my father back in March 2000 for my mother, with my sister and I as minor children), an I-485(Don't see how I can take advantage of this, as I'm not an immigrant), an I-131(Not quite sure what this does).

I think what I have to do, when my sister and Mom arrive here is this, file for an adjustment of status and file for a wok permit. Again not sure, what to do, I guess I will have to ask a lawyer what to do. Thanks for all your help though!

Ingo Pakleppa

On Fri, 15 Nov 2002 14:52:01 -0800, Fragger wrote:


    > Thank you very much for your advice, but I'm not quite sure why my
    > father needs to file an I-130(already filed by my father back in March
    > 2000 for my mother, with my sister and I as minor children)

This is simply an expedient. He can rely on the one that was filed
earlier, but it may yet be years before that is approved and will do you
any good. Filing a new one as a US citizen may be much faster.

    > an I-485(Don't see how I can take advantage of this, as I'm not an
    > immigrant)

Of course you are. Otherwise, why would your father have filed an I-130
for you in the first place? Incidentally, you will need a separate I-485
for each beneficiary - one for your mother, one for your sister, and one
for you.

    > an I-131(Not quite sure what this does).

The I-131 is not always required. While an I-485 is pending, the applicant
may not leave the US, not even for one day, not even step over the border
for a minute. An I-131 is an application for advance parole, which would
allow you to return to the US instead.

Also, you will need an I-765 - this is the application for a work permit.

    > I think what I have to do, when my sister and Mom arrive here is this,
    > file for an adjustment of status and file for a wok permit. Again not
    > sure, what to do, I guess I will have to ask a lawyer what to do.
    > Thanks for all your help though!

Fragger

Thanks again for your reply, but I'm still confused, and here's how:

Are you sure the new I-130 will be faster, and will not create any complications? Also, if my Dad applies for a new I-130, we won't even be able to take advantage of the K Visa, just in case required. Also, I heard that when a Perminent resident turns into a citizen, his categories automatically get adjusted, is this true? The only informing that I know of, is to the NVC, and even that is after the I-130 is approved, which in our case, is I suppose 2 months away or so.

I'm very confused about the I-485. In order to adjust one's status into a citizen, one needs to be an immigrant(present green card holder), which we are not. I don't think you need to be immigrant to file an I130, but you have to file an I-130 to become an immigrant, please advice me further on this, if I'm wrong.

I don't think we would need anI-131 as of now.

Please reply further, once again, thanks for all your time, sir!

Sylvia Ottemoeller

"Fragger" wrote in message
news:[email protected]...

    > Thanks again for your reply, but I'm still confused, and here's how:
    > Are you sure the new I-130 will be faster, and will not create any
    > complications? Also, if my Dad applies for a new I-130, we won't even be
    > able to take advantage of the K Visa, just in case required.

Eventually, your father will have to file new I-130s for both you and your
sister, to classify you as immediate relatives, no matter what else you do.
The following may be found at
http://www.ins.usdoj.gov/graphics/pu...ife081401.htm:

"To obtain immigrant status --once in the United States -- a K-3
nonimmigrant must file a Form I-485 (Application for Adjustment to Permanent
Residence). A K-4 nonimmigrant must have a Form I-130 filed on his/her
behalf by his/her U.S. citizen parent/stepparent and must file a Form I-485.
K-3/4 nonimmigrants will become lawful permanent residents and receive their
Green Card when both the Form I-130 petition and their Form I-485
application have been approved."

Because your Dad can file an I-130 and you can file an I-485 simultaneously
at an INS district office, there is no reason for *you* to take advantage of
the K visa. You and he can file this package the day after he becomes a
citizen. By the way, his filing a new I-130 for you does not cancel the
previous I-130 filed for your mother.

The only purpose of the K-3 and K-4 is to allow the visa holders to enter
the U.S., in advance of the date that they would *otherwise* be eligible to
enter the U.S., and wait *in* the U.S. rather than outside until they are
eligible to file Form I-485, which is the application to adjust to permanent
resident status, or until they are eligible for consular immigrant visa
processing, if they choose that path. If you are *already* in the U.S., and
you are *already* eligible to file Form I-485, there is no advantage to
using the K visa.

Also, I
    > heard that when a Perminent resident turns into a citizen, his
    > categories automatically get adjusted, is this true?

The term "adjusted" in INS law and regulation does not refer to what you are
talking about above. INS uses the term "converted" for this. The
conversion of the of the category of the I-130 filed for your mother, from
Family 2A to Immediate Relative, will occur automatically the day your
father is naturalized.

The only informing
    > that I know of, is to the NVC, and even that is after the I-130 is
    > approved, which in our case, is I suppose 2 months away or so.

It is a reasonable assumption that the I-130 was *already approved,* because
it was filed at INS VSC in March 2000, and VSC's waiting time for I-130s for
the preferences, including Family 2A, are less than one year (see
http://www.usvisa.com/vermont.htm). The approved I-130 has been sitting at
NVC for some time, probably, waiting for the priority date to become current
in the Family 2A category. You can check out whether the I-130 was approved
by entering the INS Receipt Number here:
https://egov.ins.usdoj.gov/graphics/...s/caseStat.jsp. (If the I-130
is indeed still pending at INS VSC, something went wrong with the case, and
you will probably need help from your Congressperson to straighten things
out.)

If your father wants to pursue the K-3/K-4 route, as soon as he becomes a
citizen he will file Form I-129F with the Chicago INS address which is on
the I-129F petition form. The Chicago office will check the petition,
deposit the $95 fee, and send the petition on to the INS Missouri Service
Center. Your father will initially receive a notice of receipt from the
Chicago office and later a notice of approval. The Missouri Service Center
will approve the petition and forward it to the consular post. The consular
post will schedule an interview, interview your mother and sister, and if
all goes well, issue them K-3 and K-4 visas. They will enter the U.S. Your
mother's K-3 status will be valid for 2 years. Your sister's K-4 status
will be valid for 2 years, or her 21st birthday, whichever is earlier. Then
they will both file Form I-485 and undergo the adjustment process. Your
sister's I-485 must be accompanied by an I-130 from your father.

See http://www.shusterman.com/msc.html for I-129F processing times;
currently it appears to be about 4 months from filing to approval. From
approval to the scheduling the consular interview, it will take another few
months. To find out more about the K-3/K-4 process, go to
http://www.mindspring.com/~docsteen/...o/visainfo.htm, accept the
disclaimer, and follow links to "SPOUSE: K3 VISA."

Your father could pursue another route for the immigration of your mother
and sister, which would not involve K-3 and K-4: consular immigrant visa
processing. He would notify NVC of his naturalization. Within a few weeks,
NVC will send a package (formerly known as Packet 3) to the I-130
beneficiary, your mother, and she will send a reply to either NVC or the
consular post (depending on what the home country is). Then the consular
post will schedule an interview. The interview can usually be scheduled
within three months of the Packet 3-type package being sent out. If all
goes well, your mother would get an immigrant visa at the interview, and she
could enter the U.S. and become a permanent resident immediately.

Your sister could not immigrate along with your mother, as she could have
done in category Family 2A, because Family 2A allows minor children to
immigrate as derivative beneficiaries, but the Immediate Relative category
only allows the immigration of the principal beneficiary.

After his naturalization, your father could file another I-130 asking for
your sister to be classified as an Immediate Relative, and she could go
through the consular immigrant visa process as a principal beneficiary. Her
I-130 will take about 5 months from filing to approval at the INS VSC (see
http://www.usvisa.com/vermont.htm), and the consular post can probably
schedule an interview for her about 4 or 5 months after that.

You should check this with an attorney, but I think that the whole I-129F --
K-3/K-4 process would take almost the same amount of time as I-130 consular
processing, starting from scratch when your father becomes a citizen, would
take for your sister. The pros and cons should be carefully weighed. The
big advantage of the straight I-130 consular processing is that no I-485
application will be necessary after your mother and sister enter the U.S. as
permanent residents.

If your mother wants to stay in the home country along with your sister
until she gets her immigrant visa, your mother can postpone her interview.
Or, since her immigrant visa will be valid for 6 months, so she can wait
before entering the U.S. Or, your mother could enter the U.S. and immigrate
as soon as possible, and then return to the home country for awhile to stay
with your sister while she is waiting.

    > I'm very confused about the I-485. In order to adjust one's status into
    > a citizen, one needs to be an immigrant(present green card holder),
    > which we are not.

The word "adjust" in INS law and regulations does not refer to citizenship
at all. "Adjust" means "change to permanent resident status inside the
U.S." The change can be made either from a valid nonimmigrant (temporary)
status, or from violated status if the person is eligible for certain
exemptions from the requirement for having maintained continuous valid
nonimmigrant status.

I don't think you need to be immigrant to file an
    > I130, but you have to file an I-130 to become an immigrant, please
    > advice me further on this, if I'm wrong.

I think the confusion was based on the fact that you thought "adjustment"
referred to the change from permanent resident status to citizenship.

    > I don't think we would need anI-131 as of now.

If you want to be able to travel outside the U.S. for any kind of emergency,
you will obtain advance parole by filing the I-131 with your I-485. It
costs $110. Otherwise, you may be faced with an emergency like the illness
or death of a loved one in your home country, and you will not be able to go
because the I-131 processing time is too long.

Your family's case is so complicated that I think it would be wise to get
the assistance of a good immigration attorney. Here are two more sites
where you can read up on K-3 and K-4:

http://frwebgate.access.gpo.gov/cgi-..._register&doci
d=01-9367-filed
http://k1.exit.com/fedreg.html

Fragger

Wow! Thanks for a very detailed reply, indeed Sylvia. I really appreciate the time of have put up into this.

Your post certainly clears up a lot of the issues in my mind, especially the filing of seperate I-130 for my sister and I. You are right, all that is too complicated, that is, whether we go for the immigrant visa, or for the K3 or K4, but what if I asked my father to do this:

1. After taking the oath for his citizenship, maybe he can file for my certificate of citizenship, under the new Child Citizenship. By the way, I have a question about that too. The act requires for a foreign born child's US citizen parent to atleast be living in the US for atleast 5 years. Here are my questioms about this requirement:

a. Does living mean, actually be physically be present in the US for 5 years, or does it mean, at least be a resident of US for at least 5 years.

b. Also, does the 5 year living requirement apply a total stay of a person, or AFTER he becomes a US Citizen? In other words, will the 5 years count while the person was a perminent resident?

2. My father could also file for the K Visas for my family, and when my mother and sister come here, he could file for the citizenship for my sister and adjustment of status(I-485) for my mother. After that, my mother would receive her green card.

Do you think this will work?

Also, this is very important. Would you, by any chance, have an idea how the INS calculates the living time of an immigrant here. My father has been an immigrant since 1983, but he did not file his tax returns til 94, that's when he started to live here, do you think that affects the situation?

Thanks agin!

Ingo Pakleppa

Could you do me a favor and include the post you are replying to in your
own posts? It's difficult and, due to Internet delays, sometimes not
possible at all to follow what you are referring to.

On Sat, 16 Nov 2002 22:40:58 -0800, Fragger wrote:

    > Thanks again for your reply, but I'm still confused, and here's how:
    >
    > Are you sure the new I-130 will be faster, and will not create any
    > complications?

Actually, this new I-130 would take exactly zero days to process. The
reason is that you file it together with an I-485. When INS sees the
I-485, they process that in the usual time and simply also at the same
time look at the I-130.

    > Also, if my Dad applies for a new I-130, we won't even be able to take
    > advantage of the K Visa, just in case required.

If your dad applied for this new I-130, you would never need the K visa
because you would already be in the US and file an I-485 at the same time.

    > Also, I
    > heard that when a Perminent resident turns into a citizen, his
    > categories automatically get adjusted, is this true?

Yes. However, this does not affect processing times - it affects only when
the law says that you can get a Green Card in the first place.

    > The only informing
    > that I know of, is to the NVC, and even that is after the I-130 is
    > approved, which in our case, is I suppose 2 months away or so.

If it truly is that close, then you may be right, and it may be better to
simply wait. What did you say, which service center did you use for the
I-130, and when was it filed?

    > I'm very confused about the I-485. In order to adjust one's status into
    > a citizen, one needs to be an immigrant(present green card holder),
    > which we are not. I don't think you need to be immigrant to file an
    > I130, but you have to file an I-130 to become an immigrant, please
    > advice me further on this, if I'm wrong.

OK, here is the gist. Becoming a citizen is essentially a two-step
process. First, you become a Green Card holder. Then you can apply for
citizenship (if you want).

For step 2, pretty much the only requirement (besides not being a mass
murderer...) is that it has been five years since the first step.

For the first step, getting the Green Card, you (the beneficiary) need a
sponsor. The sponsor files what is known as a petition (this is on form
I-130). On the petition, the sponsor basically says "I would like to
sponsor this person. Please allow him to apply for a Green Card".

You yourself file the I-485, which is simply the application to make you a
Green Card holder. In other words, the I-130 basically asks INS to allow
you to file an I-485.

In the case of immediate relatives (such as you), INS allows you to put
the I-130 and the I-485 in the same envelope, and will decide about both
of them together at the same time.

Sylvia Ottemoeller

"Fragger" wrote in message
news:[email protected]...

    > Wow! Thanks for a very detailed reply, indeed Sylvia. I really
    > appreciate the time of have put up into this.
    > Your post certainly clears up a lot of the issues in my mind, especially
    > the filing of seperate I-130 for my sister and I. You are right, all
    > that is too complicated, that is, whether we go for the immigrant visa,
    > or for the K3 or K4, but what if I asked my father to do this:
    > 1. After taking the oath for his citizenship, maybe he can file for my
    > certificate of citizenship, under the new Child Citizenship.

You should be aware that the mere filing of the N-600, application for
certificate of citizenship, gives you no status at all. If the application
is approved, of course you are fine.

If the application is denied, then you may find yourself to have been in the
U.S. illegally for some time. What is your current status, by the way?

The N-600 application is notorious for taking one or two years or more from
filing to approval. It is not a high priority for INS.

By the
    > way, I have a question about that too. The act requires for a foreign
    > born child's US citizen parent to atleast be living in the US for
    > atleast 5 years. Here are my questioms about this requirement:

Here are a couple of sites which can give guidance in figuring out whether
he can pass on U.S. citizenship to you:

http://www.grasmick.com/citizen.htm#CITIZENSHIP%20FROM
http://www.richw.org/dualcit/faq.html#borndual

Unless you are under the age of 16, the residence requirements for your
father to pass on U.S. citizenship to you are 10 years physical presence in
U.S. prior to your birth, at least 5 of which were after his 14th birthday.

    > a. Does living mean, actually be physically be present in the US for
    > 5 years, or does it mean, at least be a resident of US for at
    > least 5 years.

The law says physical presence. Usually, in applying that standard, for
example for the eligibility to apply for naturalization, INS counts the
*days* of actual physical presence within the borders of the U.S. I'm not
sure about this particular provision.

    > b. Also, does the 5 year living requirement apply a total stay of a
    > person, or AFTER he becomes a US Citizen? In other words, will the 5
    > years count while the person was a perminent resident?

This I don't know.

    > 2. My father could also file for the K Visas for my family, and when my
    > mother and sister come here, he could file for the citizenship for my
    > sister and adjustment of status(I-485) for my mother. After that, my
    > mother would receive her green card.
    > Do you think this will work?

It will work for your mother. Whether the citizenship route will work for
your sister depends on whether your father is eligible to pass on
citizenship to her.

    > Also, this is very important. Would you, by any chance, have an idea how
    > the INS calculates the living time of an immigrant here. My father has
    > been an immigrant since 1983, but he did not file his tax returns til
    > 94, that's when he started to live here, do you think that affects the
    > situation?

I think INS counts only physical presence, not legal residence, or legal tax
filing, or things like that. How can your father have "been an immigrant"
11 years before he "moved" to the U.S.?