AOS Forms that need to be filled

[roychoudhury@houston]

I (USC) am applying AOS for my Wife who has two sons from her previous marriage. I am trying to figure out if I have all the required foms
1. I-130 - should it be only for her or do I have to fill for her two sons too. Both the sons are not in US currently but we are including them in the 485. do I have to fill 3 I-130 and pay fee for each?
2. I-864 - File 1 application or 3?
3. I-485 - We are including the sons in the application - so should be 1 application?
4. I-765 - 1 application for my wife
5. I-131 - 1 application only for my wife? Remember both the sons are in their native country

Please correct me and add if anything I am missing

[newacct]

1. I-130 - should it be only for her or do I have to fill for her two sons too. Both the sons are not in US currently but we are including them in the 485. do I have to fill 3 I-130 and pay fee for each?

You need to file three I-130s. The spouse of a US citizen is in the Immediate Relative category, which cannot have derivative beneficiaries. The kids were under 18 when you married, right?

2. I-864 - File 1 application or 3?

Three. One I-864 for each I-130. But I-864 is only needed with the I-485 (if doing Adjustment of Status) or at the consular processing stage. Since the kids are not in the US, they are not doing Adjustment of Status (I-485), and will instead be doing Consular Processing abroad. The I-864 for the kids' cases will only be requested from you at the Consular Processing stage, after the I-130 is approved.

3. I-485 - We are including the sons in the application - so should be 1 application?

You can never "include" someone else on an I-485. Even if there were derivative beneficiaries (which there aren't in this case as they are all principal beneficiaries in their own petitions), each person would file their own I-485. However, since the kids are not in the US, they will not be doing Adjustment of Status, and will not be filing I-485.

4. I-765 - 1 application for my wife
5. I-131 - 1 application only for my wife?

Yes, these are only for someone filing I-485.

[roychoudhury@houston]

You need to file three I-130s. The spouse of a US citizen is in the Immediate Relative category, which cannot have derivative beneficiaries. The kids were under 18 when you married, right?

No - they were all over the age of 18 at that point of time. BTW is it 18 or 21 years of age? One was below 21 while the other reached 21 when we married.

[newacct]

No - they were all over the age of 18 at that point of time. BTW is it 18 or 21 years of age? One was below 21 while the other reached 21 when we married.

Your wife didn't come on K1, right?

Under-21 vs 21-or-over matters for the immigration category, and matters for whether a child qualifies as a derivative beneficiary, but neither of those are the issue here. The issue here is that the children are not your biological children; they are your step-children. And a stepparent-stepchild relationship only counts as a parent-child relationship for US immigration purposes if the child was under 18 when the stepparent married the child's biological parent. So you are not qualified to petition (i.e. file I-130 for) either of the children. This means that only your wife can petition the children, and she can only do that after she becomes a permanent resident (i.e. when her I-485 is approved, which can take a year or more). Then, if the children are still unmarried, your wife can petition them, and what category they will be depends on their age. An unmarried under-21 child of a permanent resident is in the F2A category, while an unmarried 21-or-over child of a permanent resident is in the F2B category. (They might age out from F2A to F2B while waiting though.) F2B has a backlog of at least 7 years; F2A is less (it's hard to tell exactly how long). They will have to remain unmarried while they wait.

[roychoudhury@houston]

Your wife didn't come on K1, right?

Under-21 vs 21-or-over matters for the immigration category, and matters for whether a child qualifies as a derivative beneficiary, but neither of those are the issue here. The issue here is that the children are not your biological children; they are your step-children. And a stepparent-stepchild relationship only counts as a parent-child relationship for US immigration purposes if the child was under 18 when the stepparent married the child's biological parent. So you are not qualified to petition (i.e. file I-130 for) either of the children. This means that only your wife can petition the children, and she can only do that after she becomes a permanent resident (i.e. when her I-485 is approved, which can take a year or more). Then, if the children are still unmarried, your wife can petition them, and what category they will be depends on their age. An unmarried under-21 child of a permanent resident is in the F2A category, while an unmarried 21-or-over child of a permanent resident is in the F2B category. (They might age out from F2A to F2B while waiting though.) F2B has a backlog of at least 7 years; F2A is less (it's hard to tell exactly how long). They will have to remain unmarried while they wait.

"Your wife didn't come on K1, right" - No she came on business visa and as of present time her AOS is processing on EB1C. But it is happening since 2years. We are tired so want to pursue the marriage route

[newacct]

If one or both of her sons can be derivative beneficiaries on her employment-based petition (I don't know how the CSPA calculation would come out), then it's probably better for her to immigrate on that route. Technically she could immigrate first through you and continue to get an immigrant visa through her employment-based petition, and re-immigrate through that, but why bother with the extra hassle.

[huioer]

If either of her sons qualifies as derivative beneficiaries on her employment-based petition (although the CSPA calculation remains uncertain), it's likely more advantageous for her to pursue immigration through that route. While technically she could initially immigrate through you and then obtain an immigrant visa through her employment-based petition, undergoing the process twice seems unnecessary.