Russia - Direct Consular Filing?

[RobertE]

I am a US citizen and have applied for a fiancee visa for a woman in Russia, and it is being processed in California. It appears the paperwork will not be approved (based on present processing times) till some time this summer. The problem is that her daughter will be 21 in early June, and if the K1 and K2 visas are not approved before her birthday, she cannot accompany her mother. ( I think that is correct; maybe the interview has to be completed before the child's birthday.)
My fiancee does not want to leave her daughter there for three more years, which is about how long it would take to get her here after my fiancee arrives.
I realize there is no more Direct Consular Filing, but am wondering if I go to Russia now and marry my fiancee there whether that would alter the rules regarding the child accompanying her mother. If not, is there another way to solve this problem?
Any advice is gratefully appreciated.
Bob

[RobertE]

I am a US citizen and have applied for a fiancee visa for a woman in Russia, and it is being processed in California. It appears the paperwork will not be approved (based on present processing times) till some time this summer. The problem is that her daughter will be 21 in early June, and if the K1 and K2 visas are not approved before her birthday, she cannot accompany her mother. ( I think that is correct; maybe the interview has to be completed before the child's birthday.)
My fiancee does not want to leave her daughter there for three more years, which is about how long it would take to get her here after my fiancee arrives.
I realize there is no more Direct Consular Filing, but am wondering if I go to Russia now and marry my fiancee there whether that would alter the rules regarding the child accompanying her mother. If not, is there another way to solve this problem?
Any advice is gratefully appreciated.
Bob

[aneri]

Hi RobertE, according to timelines, even if you get married and apply for your wife in the next few weeks, a miracle would need to happen for any visa (K3 or IR-1) to be approved by June...

Look into the laws about ageing out (reaching 21). If I remember well, it is not on the date of the visa issuance but on the date of the adjustment of status in the US person has to be under 21; in case the daughter receives K2 (derivate of fiance)or K4 (derivate of wife) visa.

The rules are such because child over 21 is considered adult and able to care for him/herself.

Have you thought about getting the daughter a student visa?

[ntfd3]

children never age according to the USCIS!!! that means the age she is when you apply is the age she stays until the paper work is accepted or denied.. However, here is the bs.... I did my paperwork and a big issue was the timeline my USC husband came into the life of my eldest daughter there was a big issue as to whether it was before her 14th birthday to be considered a step child???? not sure the legallities or why for this issue.

[marmaduk]

It's due to the Child Status Protecting Act that aneri mentioned. It can be a bit tricky on determining when the child's age are "frozen" by USCIS.

[aneri]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by ntfd3:
children never age according to the USCIS!!! that means the age she is when you apply is the age she stays until the paper work is accepted or denied.. </div></BLOCKQUOTE>

It is not that simple. Only USC's child age is "frozen" on the date of the petition. For the others, there are different scenarios
http://www.eimmigration.org/CSPA%20summary.htm

In addition, it is not clear wheather CSPA applys to non-immigrant petitions. K1 and K3 are non-immigrant.

[RobertE]

I have found this:
"The parent-child relationship must continue to exist at the time that immigration benefits are sought. A child includes only an unmarried person under the age of 21. Accordingly, the child must be both unmarried and under 21 at the time the visa is issued by a consulate and at the time that he or she applies for entry to the United States. If the child marries or becomes 21 after the visa is issued and before he or she applies for entry, he or she becomes disqualified for immediate relative status. However, certain exceptions to this "age-out" problem exist as a result of the Child Status Protection Act...."
on this website: http://www.americanlaw.com/famil.html
which appears to be a reliable source.
So, things look bleak.
As for a student visa for the child, what I have read said the child must have a compelling reason to return to her own country. In this case, if her mother has immigrated to the US, I think a compelling reason would be problematic.
Further information would be appreciated.
Bob

[aneri]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by RobertE:
I have found this:
"The parent-child relationship must continue to exist at the time that immigration benefits are sought. A child includes only an unmarried person under the age of 21. Accordingly, the child must be both unmarried and under 21 at the time the visa is issued by a consulate and at the time that he or she applies for entry to the United States. If the child marries or becomes 21 after the visa is issued and before he or she applies for entry, he or she becomes disqualified for immediate relative status. However, certain exceptions to this "age-out" problem exist as a result of the Child Status Protection Act...." </div></BLOCKQUOTE>

Yes, but if you read the definition of a child for immigration purposes, your fiance's daughter is not considered "your child".

On the same website, under "K status for Fiances and Spouses of USC", it says: "Aliens appearing at ports of entry with a valid K-3 visa will be inspected and, if admissible, will be admitted for a period of two years. Similarly, K-4 dependents will be admitted for a period of two years or until the day before his or her 21st birthday, whichever is shorter."

I understand what you are saying about student visa, but - somehow- many children (of LPR) are on student visas in the US while waiting their immigrant visa numbers to become available...

Maybe we all hear some good new about DCF soon

[ntfd3]

aneri, question, do the children of wives of USCs not have the ability to change status like the mother, or father for that matter???? If the parent gets PR dont the children also get that luxury providing their application is accepted? And what happens if they get temp residence when they get to 21???? do they have to leave???? Mine is 14??????

[aneri]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by ntfd3:
aneri, question, do the children of wives of USCs not have the ability to change status like the mother, or father for that matter???? If the parent gets PR dont the children also get that luxury providing their application is accepted? And what happens if they get temp residence when they get to 21???? do they have to leave???? Mine is 14?????? </div></BLOCKQUOTE>
To put it simply, and as I see it, if a child (as dependant, not primary beneficiary) enters the US on immigrant visa or adjust status (even if he/she gets conditional residency) before the age of 21, child is a legal resident. They don't have to leave when they turn 21. I don't see a problem in your case.

[RCM]

If you get married in Russia you will not be able to bring the 20 year old since he/she does not qualify as your step-child. You must has gotten married before her/his 18th birtday in order to go that route. The K1/2 is your only option of keeping mother and daughter together and you are indeed running out of time. There is a ray of hope in that the published processing times are not accurate and things are getting done faster than is listed on the USCIS website. As long as you can get the visas issued before she's 21 you have a shot. However, keep in mind the the visa for the child will only be good until her 21st birthday or 6 months whichever is shorter. So you have to arrive in the USA before the 21st birthday.
Then the next issue is the adjustment of Status. The USCIS in most jurisdictions is denying (erroneously) adjustment of K2s if they reach the age of 21 before the LPR status is granted.. Since this usually takes several months to a few years, you will likely find yourself in a group with myself and others, whose children are in limbo..subject to deportation while their parent is granted her greencart. As nuts as it sounds, it's happening since 2003 when a USCIS directive concerning the applicability of the CSPA (child status protection act) mentioned that K2 are not covered buy the new act, leaving the implication that k2's can age out during the adjustment phase. A court case on the issue is pending in California and we're hopeful of a proper ruling that will served to correct the flawed directive.
ps it wouldn't hurt perhaps to have the daughter try for a tourist visa now as a hedge. It's not likely to be granted but you never know..stranger things have happened.
Ron_monks@hotmail.com

[RobertE]

Thanks to all who have responded so far, especially Ron, with his personal experience.
I think if the Fiancee visa is not issued in time to get them here before the child's 21st birthday, we will wait until my (then) wife gets her green card (which should be about two years), and then she can make application to bring her daughter over. I understand that takes about a year, so we are looking at about three years, after my fiancee gets here, in total. Since the daughter will be in college there, and my wife can go every few months to visit her, the situation will be tolerable. My fiancee agrees on this as a reasonable scheme, too.
Bob

[aneri]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by RobertE:
we will wait until my (then) wife gets her green card (which should be about two years), and then she can make application to bring her daughter over. I understand that takes about a year, so we are looking at about three years, after my fiancee gets here, in total. </div></BLOCKQUOTE>
I don't know where you got that, but for the category F-2B (unmarried sons and daughters of permanent residents) the wait for an immigrant visa is about 10 years at the moment.

[templar]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by aneri:
I don't know where you got that, but for the category F-2B (unmarried sons and daughters of permanent residents) the wait for an immigrant visa is about 10 years at the moment. </div></BLOCKQUOTE>
I was thinking the same thing. The 10 years wait is the correct time.

[aneri]

so you can plan, the wait for unmarried sons and daughters of USC is about 6 years, so if your wife file for daughter as PR in 2008, and becomes USC in 2011 and upgrades the petition, 6 years will be counted from 2008...that means her daughter may be able to immigrate in 2014...
The waiting time can change in both directions..