December 28, 2009: Is an I-601 Waiver Needed With This Residency Application?

Is an I-601 Waiver Needed With This Residency Application?

I have a question about the following scenario. A mother and daughter enter the USA with a B-1 visa (tourist). They both overstay their tourist visa for about 3 years. Mother marries a US Citizen. USC husband wants to petition for wife and step-daughter. We all know that mother won’t have any problem adjusting status here in the USA because she entered w/ a visa. My questions are: 1) What would be the best way to proceed so that step-daughter (she’s 6 years old) would obtain Residency? 2) Does she have to pay a fine? 3) Does an I-601 need to be submitted on her behalf? 4) Does USC step-father need to submit a separate I-130 for the stepchild? Thank you.
— Anonymous

Assuming the United States citizen husband and wife got married out of love and not for the primary purpose of obtaining an immigration benefit and assuming she is otherwise qualified, the wife should be able to adjust her status in the United States. According to immigration law, so long as the qualifying marriage occurs before the child turned 18 years old and the U.S. citizen step-parent files an I-130 petition on the child’s behalf before the child turns 21 years old, then the child will be considered an immediate relative step-child for immigration purposes.

The step-child will have to file a separate adjustment of status application to obtain residency. Unless there are facts that have been omitted from the scenario presented, neither the wife nor the step-child should have to pay a fine or file a waiver. If the mother becomes a United States citizen while the step-child is a permanent resident and under the age of 18, the step-child may automatically derive citizenship.

It may be wise to consult with an experienced immigration attorney before filing any forms, fees, and supporting documentation with the United States Citizenship and Immigration Service (USCIS).

Michael Shane and Evan Shane, Immigration Attorneys

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