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Urgent advice needed for son to stay in US!!!

Urgent advice needed for son to stay in US!!!

Old Nov 20th 2009, 4:51 pm
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Default Urgent advice needed for son to stay in US!!!

I am a permanent resident in the US and married to a US citizen, I have a green card, work and own my home. My son was undecided about living in the US and at the time of my application being processed we did not apply for his permanent residency. He came to visit us in Sept 09 loved it and now wants to stay (thank goodness!!) he is 19yrs old and unmarried. I have filed an I-130 form and now looking to extend his tourist visa which expires on 13th Dec 09 I need to do this today. He is an FA qualified soccer coach and is currently volunteering for a local club, they would love to have him work for them and have provided a letter to say they have a paid job for him if/when his visa comes through.

Please can anyone tell me if what I am doing is correct or is there a faster more secure way of him extending his stay and getting his visa or work status changed? He would have nowhere to stay back in the UK were he to be denied. I am really looking for the best way forward.

Thank you so much for reading this and advance thanks for any help!!
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Old Nov 20th 2009, 4:59 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Monkeymoke View Post
...and now looking to extend his tourist visa which expires on 13th Dec 09 I need to do this today.
Is he actually in the USA on a tourist visa? He didn't use the VWP?

He is an FA qualified soccer coach and is currently volunteering for a local club...
Is this strictly a volunteer position, as in anyone doing that job would be a volunteer, and not be paid for it? If he's doing any work that the club would normally pay someone to do, he can't be volunteering for it.

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Old Nov 20th 2009, 5:05 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Monkeymoke View Post
Please can anyone tell me if what I am doing is correct or is there a faster more secure way of him extending his stay and getting his visa or work status changed? He would have nowhere to stay back in the UK were he to be denied. I am really looking for the best way forward.
At the moment, your son fits in the F2A category....unmarried child of an LPR. Currently, there is about a 4 - 5 year backlog in that visa category. See the Visa Bulletin for details here: http://www.travel.state.gov/visa/frv...etin_4576.html

So going that route, if your son wants to remain in the USA, he'd have to find his own way to stay during that 4 - 5 year waiting time. Perhaps a student visa?

I am no expert, but I think if your marriage to the USC spouse took place before your son was 18 (I think that's the right age), then your USC spouse can file an I-130 for him also, as an immediate relative, and that would be faster than you filing for him as an LPR. But double check whether that's possible, I am not sure.

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Old Nov 20th 2009, 5:16 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Noorah101 View Post
Is he actually in the USA on a tourist visa? He didn't use the VWP?


Is this strictly a volunteer position, as in anyone doing that job would be a volunteer, and not be paid for it? If he's doing any work that the club would normally pay someone to do, he can't be volunteering for it.

Rene
Thank you so much for your prompt reply, I have checked and on his departure card it says Visa Waiver is this what you are referring too? Also he is assiting the coaches as he wants to gain practical experience and definitely not getting paid - he is also not taking another persons job. Does this help?
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Old Nov 20th 2009, 5:17 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Noorah101 View Post
At the moment, your son fits in the F2A category....unmarried child of an LPR. Currently, there is about a 4 - 5 year backlog in that visa category. See the Visa Bulletin for details here: http://www.travel.state.gov/visa/frv...etin_4576.html

So going that route, if your son wants to remain in the USA, he'd have to find his own way to stay during that 4 - 5 year waiting time. Perhaps a student visa?

I am no expert, but I think if your marriage to the USC spouse took place before your son was 18 (I think that's the right age), then your USC spouse can file an I-130 for him also, as an immediate relative, and that would be faster than you filing for him as an LPR. But double check whether that's possible, I am not sure.

Rene
Thanks again for all your advice, I will certainly check to see if my husband is eligible to apply for him.
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Old Nov 20th 2009, 5:22 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Rene is correct, if the marriage occurred before he turned 18, then the stepfather can petition for him as an immediate relative and he can get a green card within a year. This is the fastest and optimal way for him.

If the marriage did not occur until after he turned 18, then he has to wait until the parent becomes a US citizen or until his priority date becomes current if the parent is an LPR and files for him. I think there is also another alternative if non of the above works, which is more tricky and requires more research - but i believe if the mother gives up her permanent resident status and she immigrates again to the US as a K-3, she can bring with her her children under 21 years of age as a K-4 which can lead to permanent residence. The k-2/k-4 visa is a well known loophole for accommodating stepchildren when the parent married when the child was over 18 but under 21.

Originally Posted by Monkeymoke View Post
Thank you so much for your prompt reply, I have checked and on his departure card it says Visa Waiver is this what you are referring too? Also he is assiting the coaches as he wants to gain practical experience and definitely not getting paid - he is also not taking another persons job. Does this help?
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Old Nov 20th 2009, 5:26 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Monkeymoke View Post
Thank you so much for your prompt reply, I have checked and on his departure card it says Visa Waiver is this what you are referring too?
Yes, that's what I was referring to. Your son is not actually here on a visa which can be extended. He is here on the Visa Waiver Program (VWP), which only allows a 90-day stay, and cannot be extended. If he stays beyond 90 days, he goes into overstay. If he overstays the VWP, even by one day, he can never use it again. So he should go back to the UK before Dec. 13.

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Old Nov 20th 2009, 5:32 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Monkeymoke View Post
Also he is assiting the coaches as he wants to gain practical experience and definitely not getting paid - he is also not taking another persons job. Does this help?
OK, so being a coach assistant is not a paid position, then. The coach (or club) would like to hire him as a paid employee whenever he's work authorized in the USA, right? What would he be doing for them at that time? What would his paid position be?

In a roundabout way, I'm trying to make SURE that the job he does now (assisting coaches) is definitely a "volunteer only" job....that anyone who wants to do this, would do it on a volunteer basis...no one ever gets paid for it. Since they are willing to hire him as a paid employee at some point, they must have some other position in mind for him, right?

Someone here on the VWP (or as a tourist) cannot do any work at all, unless that work is most definitely a volunteer only position, and no one would ever get paid or compensated for that job. Usually this is like working in a soup kitchen, for the local animal shelter, maybe a volunteer library worker....not sure if soccer coach assistance falls into that category. I'm just saying to make sure, because you do NOT want him working illegally here.

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Old Nov 20th 2009, 5:39 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Noorah101 View Post
OK, so being a coach assistant is not a paid position, then. The coach (or club) would like to hire him as a paid employee whenever he's work authorized in the USA, right? What would he be doing for them at that time? What would his paid position be?

In a roundabout way, I'm trying to make SURE that the job he does now (assisting coaches) is definitely a "volunteer only" job....that anyone who wants to do this, would do it on a volunteer basis...no one ever gets paid for it. Since they are willing to hire him as a paid employee at some point, they must have some other position in mind for him, right?

Someone here on the VWP (or as a tourist) cannot do any work at all, unless that work is most definitely a volunteer only position, and no one would ever get paid or compensated for that job. Usually this is like working in a soup kitchen, for the local animal shelter, maybe a volunteer library worker....not sure if soccer coach assistance falls into that category. I'm just saying to make sure, because you do NOT want him working illegally here.

Rene
At present he is only assisting the coaches, it is a developing club and if they were to take him on permanently visa permitting they would create another team solely for him. He/we would not jepordise his visa for the US by doing paid work he just wants to gain experience and utilise his time while in the States as well as networking with new contacts. I do hope that this is within his rights as a visitor to the States.
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Old Nov 20th 2009, 5:40 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Noorah101 View Post
Yes, that's what I was referring to. Your son is not actually here on a visa which can be extended. He is here on the Visa Waiver Program (VWP), which only allows a 90-day stay, and cannot be extended. If he stays beyond 90 days, he goes into overstay. If he overstays the VWP, even by one day, he can never use it again. So he should go back to the UK before Dec. 13.

Rene
Do you think they would allow him back in within the month to spend Christmas with his family?
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Old Nov 20th 2009, 5:42 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by dreamercon View Post
Rene is correct, if the marriage occurred before he turned 18, then the stepfather can petition for him as an immediate relative and he can get a green card within a year. This is the fastest and optimal way for him.

If the marriage did not occur until after he turned 18, then he has to wait until the parent becomes a US citizen or until his priority date becomes current if the parent is an LPR and files for him. I think there is also another alternative if non of the above works, which is more tricky and requires more research - but i believe if the mother gives up her permanent resident status and she immigrates again to the US as a K-3, she can bring with her her children under 21 years of age as a K-4 which can lead to permanent residence. The k-2/k-4 visa is a well known loophole for accommodating stepchildren when the parent married when the child was over 18 but under 21.
Thank you for your advice, can we send in another application form for my son through my husband and cancel the previous I-130? Also where can I find more information regarding the K3 entry and would I still be able to carry on working?
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Old Nov 20th 2009, 5:43 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Monkeymoke View Post
Do you think they would allow him back in within the month to spend Christmas with his family?
There is absolutely no way of knowing. General rule of thumb is to spend more time outside the USA than inside....so if he stays in the USA 85 days on this trip, it's advised to stay outside the USA 85+ days before attempting to return on the VWP again. Back to back trips are frowned upon.

He can certainly give it a shot, all they will do is turn him away at the POE and send him on the next flight back to the UK. That will be annoying, but it won't hurt his chances of an Immigrant Visa.

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Old Nov 20th 2009, 5:44 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Monkeymoke View Post
I am a permanent resident in the US and married to a US citizen, I have a green card, work and own my home. My son was undecided about living in the US and at the time of my application being processed we did not apply for his permanent residency. He came to visit us in Sept 09 loved it and now wants to stay (thank goodness!!) he is 19yrs old and unmarried. I have filed an I-130 form and now looking to extend his tourist visa which expires on 13th Dec 09 I need to do this today. He is an FA qualified soccer coach and is currently volunteering for a local club, they would love to have him work for them and have provided a letter to say they have a paid job for him if/when his visa comes through.

Please can anyone tell me if what I am doing is correct or is there a faster more secure way of him extending his stay and getting his visa or work status changed? He would have nowhere to stay back in the UK were he to be denied. I am really looking for the best way forward. Thank you so much for reading this and advance thanks for any help!!
Hi:

I would recommend you consult with a qualified immigration attorney. This may or may not be a complicated case and some issues really should not be discussed publicly on line but are perfectly appropriate in the context of a lawyer's office.

If you married your AmCit spouse before your son turned 18, then he is the "step-son" of your AmCit spouse and will be an "immediate relative." Your spouse would have to do the I-130. This will be in the same category as an "immediate relative spouse" -- other than the petitioner's G-325A form, it is identical to the marriage application.

YOUR I-130 is for now for a "FB-2A" classification. Notionally speaking, it will convert to "FB-2B" when he reaches 21. I put in the caveat because the Child Status Protection Act will affect that -- to what extent we don't know. [In your case you do not want USCIS to act expeditiously. If they put that petition on the back burner for four or five years, it will be a blessing. Please do not ask why -- CSPA gives me headaches].

When you become a US Citizen, the FB-2 petition will convert to the category to the appropriate classification. Again, the reason for the wishy-washy language -- the operation of CSPA may make him an "immediate relative" child under 21. If not, he will shift from FB-2 to FB-1 which usually has a shorter waiting list. However, CSPA gives your son the option of ignoring your naturalization if it is to his advantage.

You mention an admission of 90 days. If he has the green I-94W, that is a "VWP" admission and there is no extension allowed. Period. However, adjustment as an "immediate relative" is allowed. However, that opens up another "can of worms" which are best discussed in the privacy of an attorney's office.
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Old Nov 20th 2009, 5:47 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Monkeymoke View Post
Thank you for your advice, can we send in another application form for my son through my husband and cancel the previous I-130? Also where can I find more information regarding the K3 entry and would I still be able to carry on working?
Yes, your husband can file an I-130 now. You can notify USCIS and NVC that you want to cancel the I-130 you filed. You just lose the filing fee you paid.

I personally would not go down that whole "give up your current green card and re-immigrate on the K-3" scenario. That would have been a last resort option if your husband couldn't file an I-130...but he can, so don't go through all that re-immigration again. Takes lots of time and money to do that, and no, you wouldn't be able to stay in the USA and work while waiting for your K-3 to come through. You'd basically go back home and spend another 6+ months outside the USA waiting for the K-3 visa...then you'd have to do an adjustment of status to get your green card back again, along with permission to work again.

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Old Nov 20th 2009, 5:54 pm
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Default Re: Urgent advice needed for son to stay in US!!!

Originally Posted by Noorah101 View Post
Yes, your husband can file an I-130 now. You can notify USCIS and NVC that you want to cancel the I-130 you filed. You just lose the filing fee you paid.

I personally would not go down that whole "give up your current green card and re-immigrate on the K-3" scenario. That would have been a last resort option if your husband couldn't file an I-130...but he can, so don't go through all that re-immigration again. Takes lots of time and money to do that, and no, you wouldn't be able to stay in the USA and work while waiting for your K-3 to come through. You'd basically go back home and spend another 6+ months outside the USA waiting for the K-3 visa...then you'd have to do an adjustment of status to get your green card back again, along with permission to work again.

Rene
Rene:

She should see an attorney. This is a Momemi type of issue. The options should be explained to her son and he can seek the advice of his mother. [BTW, as a technical matter, I'm wondering if my prior warnings about conspiracy law will work to protect the attorney client privilege if mom is in the room? Just individual curiosity on a highly technical question].

Also, one of your fellow moderators has raised the concerns of "UPL" in another thread -- as you know, my "line" is pretty mild compared to others, but I have this feeling that this post crosses that line.

To OP, get the advice in an in person consultation within the next week! That December 13, 2009 date underlies this advisal.

Good luck.

Last edited by Folinskyinla; Nov 20th 2009 at 5:57 pm.
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