How can I avoid leaving my children behind if we mistakenly filed their I-130 forms too late?

When you become a permanent resident, your children under 21 should be able to receive their green card through yourself at the time of interview - check with the US consulate.

Ask to have them expedited to link up with yours and/or delay your interview for their approvals.

There are several potential ways to avoid leaving your children behind if their I-130 forms were filed late. One method is using "follow-to-join" benefits, which means you don't have to submit a separate Form I-130 for your spouse and/or children. In this situation, you can notify a U.S. consulate that you are a permanent resident so your spouse and/or children can apply for an immigrant visa. If the I-130 form is unused and still valid, your children might be eligible for an adjustment of immigration status to permanent legal resident under specific provisions in the Immigration and Nationality Act (INA). If the I-130 form was unused, it could stay approved for use by your children as a means for immigration. In "exceptional circumstances", it might be possible to file the I-130 petitions directly at a U.S. Embassy instead of mailing them to a domestic "lockbox", as per usual procedure. Exceptional circumstances can include threats to personal safety, medical emergencies, and temporal proximity to aging out of eligibility. The concept of "conversion" and "retention" could also be beneficial. In the situation of children of a lawful permanent resident, when they turn twenty-one, their Form I-130 Petitions are automatically converted to the F2B Family Preference Category and retain their earlier Priority Date. However, it's crucial to remember that each case is unique, and the outcome depends on the specific circumstances of the individuals involved. It is not guaranteed that the same relief sought in one case will be applicable in another. Therefore, while there are potential routes to avoid leaving your children behind if I-130 forms were filed late, these should be pursued carefully and with full understanding of the potential implications. Notably, the law states that no petition shall be approved if the alien previously "sought to be accorded" immediate relative status as a spouse of a U.S. citizen "by reason of a marriage determined by (USCIS) to have been entered into for the purpose of evading the immigration laws". Therefore, the integrity of the relationship between the petitioner and the beneficiaries is vital. In the case of Si Min Cen v. Attorney General, it was noted that a K-4 child (a child who has accompanied a K-3 visa holder, their parent, to the United States) who was over the age of 18 at the time of her parent's marriage is limited by the Regulation to obtaining lawful permanent residence only by way of an I-130 petition filed by her stepparent, a petition which S 1101(b)(1)(B) precludes that stepparent from filing for a stepchild in this age group. Such a child, in other words, has no recourse but to leave her family behind in the United States and return to her home country to apply for a permanent visa from abroad. Finally, a child who attains 21 years of age who has filed a petition that was filed or approved before the date on which the child attained 21 years of age shall be considered a petitioner for preference status under paragraph (1), (2), or (3) of section 1153(a) of this title, whichever paragraph is applicable, with the same priority date assigned to the self-petition filed, and no new petition shall be required to be filed. This could be another potential route to consider.

You have several potential courses of action. Firstly, you can request a rescheduling of your interview if there is a valid reason, such as waiting for the processing of your children's I-130 forms. This has been demonstrated in the case of Young v. Trump, which highlighted the significant hardships faced by plaintiffs due to prolonged family separations and the emotional toll of waiting for the processing of visa petitions. Secondly, you may proceed with your interview and handle your children's case separately. In Zemeka v. Holder, separate I-130 interviews were scheduled for all parties involved and they proceeded separately. However, it is important to note that USCIS can deny the Form I-130 petition if it determines that the testimony and documentary evidence did not establish the claimed relationship. This is evident in the case of Simko v. Board of Immigration Appeals, where the USCIS closely scrutinized the answers and information provided during the I-130 interviews. Furthermore, if you find the interview questions challenging or if you feel unprepared to present your case, you can request a rescheduling so that you can be represented by competent counsel. Once the USCIS approves the Form I-130, it sends the approved Form to the National Visa Center (NVC), after which the foreign citizen child must submit a DS-260-Immigrant Visa Electronic Application, the required supporting documents, and necessary fees to the NVC. The NVC then determines the case to be "documentarily complete," and the foreign citizen child can be scheduled for an appointment for an interview to make a visa petition before a consular officer. Please bear in mind that the USCIS may request additional evidence or documents during or after the interview. The USCIS has been known to issue Requests for Evidence (Form I-72) following interviews, requesting explanations for inconsistencies or missing information. Therefore, it is crucial to ensure that all the necessary documentation is in order and that all information provided is accurate and consistent.

If the family petitioner is a US citizen, they do indeed have to file separate I-130s for each family member. If they're a green card holder, then they can file one petition for a spouse and then include children as
derivatives. If a parent has an interview date but the children's I-130 processes are still underway, the parent can consider contacting the consular post and asking to delay their interview or cancel it. The consular system can accept rescheduling. There is a caveat: if you fail to contact the consulate each year to confirm your continuing interest, the consulate may mark your immigrant visa case as abandoned. Another option is to sit the interview, acquire your immigrant visa stamp, and then travel to the US on the stamp one time - this converts the visa plus stamp into an effective "green card" equivalent document. In the US, you may apply for a reentry permit which can allow you to leave the US for extended periods (of up to two years) for temporary reasons. These can include being with your children to oversee their completion of education and visa processes.

If their I-130 petitions based on family relationship are still pending, they will have to apply to follow to join you later.