Can I continue AOS for minor step children if separated?

[contreeg]

Live in Arizona - I'm a US citizen.

To get right to the point, my question is, can I continue permanent residency process for my two step daughters, both under 18 if I'm no longer living with my wife?

In 1999 I married my wife who had 3 minor children, but only one child was living with her in the US at the time and both my wife and her daughter were here illegally, But after 4 years she and her daughter were finally granted permanent residency under 245i. The other 2 daughters were living in Mexico with there grandmother, and we did not petition for them since they did not have a birth cirtificate and my wife would have to go to Mexico and register them for birth cirtificates as soon as she was granted permanent residency and could leave the US. Well the grandmother passed away before my wife had here permanent residency status and since no one was willing to take care of them she had them brought to the US (illegally).

The two girls live with us in the US, so I filed I130's for both girls last year and received the Notice of Action, and was on to the next step which was the Affidavit of Support, when my wife and I separated. She moved out and I could not pay for the house so I lost it and moved into an apartment. She has filed a change of address with INS and was told that they are waiting for the affidavit of support form and fee.

Can I legally still continue this process or does the fact that we no longer live together prevent me from this? We are still legally married and have good open communication with each other and will file 2007 taxes together. I would like to help my two step daughters in anyway possible but I'm not willing to lie about our separation either (which my wife has suggested).
Please anyone help..I tried to keep this as short as possible, thanks.

[aleful]

Contree,
I really don't know, but there's another problem, they shouldn't have come. They entered illegally, so they will have to go back and have their appointment in Cd Juarez, if it is possible to continue. They should have stayed with a relative until they got their LPR. If not, she can file for them later

[contreeg]

Thank you for your quick replies it really helps..

Back in 2003 when I was still adjusting status for my wife and stepdaughter they were both illegally in the US and my wife qualified for 245i but my stepdaughter did not because the agent said that minor children are not responsible for what their parents do so only my wife had to pay the fine. So does this still apply in my situation today? I know that 245i does not exist but are minor children responsible for entering without inspection if brought by there parents? I'm no expert and don't know if the rules have changed since 2003 or maybe the agent was incorrect.

So I guess now this has become two questions/problems. Will the minor children be banned from AOS, and if they are not can I continue the process if I no longer live in the household?

What I'm most concerned with is that if I continue with my stepdaughters immigration process, will it be a waste of time and money if at the interview they will find out that we are living apart and there AOS will be denied..

[aleful]

contree,
no, the 245i closed in April 30th 2001, so anyone who has entered illegally after that date will have to go back to their country, in this case CD Juarez, even though they are minors, if all 3 of them would have been here at the same time your wife and her 3 children would have gotten the GC, but since you only filed a petition for them 2 years ago, they don't qualify. The problem is that will you make them lie? They're going to ask them questions over there. I know you have a good heart, and there is no possibility to get together again? If not, I would suggest you cancel the petition and since the mother is a LPR, let her file for her 2 file for her daughters, and not get mixed up in lies. Yes it would take a long time, but it would be worse if they found out you lied.

[Laura]

They entered illegally as minors - are they still minors right now? If neither has passed 18.5 years old, they have not accumulated any countable unlawful presence, and I think because you are still legally married you may still continue with the process.

However, I don't think they can AOS inside the U.S. because they EWI, but they won't have bars if they are still under 18.5 years of age. I believe they will have to return to Mexico to have K visa interviews. If you are currently on track for AOS you might have to file I-824s to get the petitions transferred to CDJ. I think this would be K-4 but I'm not really clear on that part.

Have you been working with an attorney at all? I would consult with Laurel Scott (visacentral.net) or attend one of her free chats on Wednesdays at 11:00 am central time to be sure that what I am telling you is correct. Also, you might want to look for member IBMMuseum - I believe he's been petitioning his Mexican wife and children (not EWI though) and he may have some insight.

[IBMMuseum]

...Also, you might want to look for member IBMMuseum - I believe he's been petitioning his Mexican wife and children (not EWI though) and he may have some insight.

Actually we've got everyone in the family up to LPR status now. I'm not really sure if there is any chance of a K-4 without a K-3 (he states his separated wife has residency now, and in reality the two daughters probably would interview at CDJ on IVs, even at IR-1 level). One question to ask is whether the remaining two daughters were listed anywhere on the mother's petition - G-325s, DS-230 (or whatever is its equivalent under 245i), etc.

Much better to list all children and have to explain a situation later. I don't see any big problem submitting the Affidavit of Support - legally he is still the stepfather at this point. But it does bring up that he will need income (or joint sponsor) for a family of five.

The Affidavit of Support paperwork does include "Agent of Choice" documents, probably best put with the LPR mother. In fact it brings up the question of how far off she (and the other daughter too) is from her citizenship. I really think consulation with an immigration lawyer is critical for this case however, and that none of my advice is anything to that level.

[contreeg]

Yes both children are under 18.5 years old, they are 13 and 14. And also during the AOS process for my wife and stepdaughter the other two daughters were listed on the G-325's per the advice of a social services worker, so that in the future it would help the AOS process for the two daughters.
My wife can file for citizenship now since 3 years have passed but if we are divorced or separated? she would have to wait another 1.5 years.
As far as affidavit of support requirements I do meet the income level as of today.
Thanks again to all for your support it's good to know I'm not the only one trying to survive this. I have only explored this forum a few days but I think it is great.

[IBMMuseum]

Yes both children are under 18.5 years old, they are 13 and 14. And also during the AOS process for my wife and stepdaughter the other two daughters were listed on the G-325's per the advice of a social services worker, so that in the future it would help the AOS process for the two daughters.
My wife can file for citizenship now since 3 years have passed but if we are divorced or separated? she would have to wait another 1.5 years.
As far as affidavit of support requirements I do meet the income level as of today.
Thanks again to all for your support it's good to know I'm not the only one trying to survive this. I have only explored this forum a few days but I think it is great.

If you have the income for the Affidavit of Support I would follow along with filing the paperwork. Your wife should file for naturalization too. It would seem to be a brief trip to CDJ once the interview is scheduled, and no waiver needed, but I still say to consult with an immigration lawyer about the specifics here.