I'm a U.S. citizen, divorcing wife for whom I filed I-130; how do I now bring in derivative kids?

Once a divorce ends the childrens' status as derivatives, they will, if separately eligible to immigrate, need separate I-130s filed on their behalf.

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Question

I’m a U.S. citizen with a wife and two young children in Mexico. I filed an I-130 petition to bring the family to the U.S., and included my two children’s names, so that they would be able to immigrate as well. Now, however, my wife and I are getting divorced. How can the children still get immigrant visas to live with me here in the United States?

Answer

There are several different ways, and the answer depends on your relationship to the children.

Before your divorce plans, you were correctly expecting that the children would qualify for visas as “derivatives” of your wife. In this context, “derivatives” don’t need someone to file a separate I-130 for them; rather, they qualify for visas based on a status that derives (comes from) a parent or spouse with an approved I-130. This feature of U.S. immigration law makes it easier to keep families together.

The flip side of this is that, if the parent or spouse (the primary beneficiary) doesn’t qualify for a visa, neither do the derivatives. So, if your wife won’t get a visa through you — either because the divorce will become final before your wife gets a visa, or you withdraw the I-130 you filed for her — her children lose their derivative status and must get their visas some other way.

If the children can be considered your children according to U.S. immigration law, you’ll be able to file a new I-130 for each of them. If those I-130s are approved, the children can use them to get an immigrant visa at the U.S. consulate in Mexico.

Or, if the children are in the U.S. already, they may be able to “adjust status” to lawful permanent residence by filing an application with U.S. Citizenship and Immigration Services (USCIS). (See “Applying for a Green Card.”) Your children are considered “immediate relatives” and are not subject to the numerical limits or quotas that can often delay the visa process for applicants in other categories.

First of all, a “child” needs to be under 21 and unmarried. You said the children were young, so they appear to meet those qualifications. Now the question is, are you their father?

If you and your wife were married when the children were born, and you and she are the natural parents, you are a father who can file an I-130 for them. If you’re the natural father but the child was born out of wedlock (that is, you and your wife weren’t married when the child was born, or your wife is not the natural mother of the child), you are a father who can file an I-130 for the child if you have or had a bona fide (real) parent-child relationship with the child.

If you’re not the natural father of the children, you can still file an I-130 for them in some circumstances if they are your stepchildren. Stepchildren are your wife’s children who were under 18 when you got married to her. After divorcing their mother, you must have had an ongoing relationship with your stepchild.

Certain adopted children are also considered yours for I-130 purposes. In most cases, the child must have been adopted while under the age of 16. Other requirements apply depending on the type of adoption. (See www.uscis.gov/adoption/immigration-through-adoption.)

You can file an I-130 for a “legitimated” child as well. Fathers who have a child out of wedlock, or men who want to be recognized as a child’s father, can “legitimate” the child so that the law treats the child as theirs. A child may be legitimated automatically in some circumstances as well. (See “Legitimacy of Children Born to Unmarried Parents.”) For I-130 purposes, the child must be legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States. In addition, the legitimation must take place while the child is under 18 and while the child is in the father’s (or both parents') legal custody.

If you can’t establish a father-child relationship in any of the ways mentioned above, the children will have to get immigrant visas by some other means. (See “Green Card Qualification.”)

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