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Can you get the Green Card even if your over 21 years old?
Question: My auntie petitioned my mother when I was 3 years old. However, the visa process is so slow that it took 22 years for the visa number to become current. I was over 21 when my mother got her Green Card and the U.S. Embassy said that I aged out and could not come. Is there something that can be done without me having to wait another 10-15 years for a petition from my mother to become current?
Answer: Normally, in that case, once the child ages out, they cannot qualify to come as a derivative. There are, however, certain instances under the CSPA (Child Status Protection Act) whereby the derivative can show he or she is under the age of 21 (under immigration law.) However, in this case, that would not be applicable. Given that, the question then becomes whether you can still fall under any particular provision of the CSPA.
In this case, there was the BIA case Matter of WANG which specifically denied the priority date retention provision of the CSPA. However, the 9th Circuit Courts of Appeal has just come out with a decision which overruled the BIA and has stated essentially that this provision of the CSPA does stand and needs to be followed.
Question: What is this case and what does priority date retention mean?
Answer: First, it is necessary to understand basic immigration family petitions. You have a petitioner which is either the U.S. Citizen, or a Lawful Permanent Resident petitioning the beneficiary (which is the person who wants to come into the U.S.) Once the petition is filed (assuming it is not an Immidiate Relative) will be put into a visa line and only when the visa becomes current (sometimes many years later), can they immigrate to the U.S.
In many of these cases, the child is eligible to immigrate as a derivative at the time that the petition is filed, but once the visa number becomes current, they “age-out”. This can also occur as a direct occurrence for example from a Lawful Permanent Resident petitioning a child under 21.
Question: What exactly is the provision of the CSPA that was ruled on in the 9th Circuit case?
Answer: Well, first you have to try to do the age reduction calculation to see if the beneficiary is actually under 21 for immigration purposes. This means that even if their real age might be over 21 years their immigration age would be under 21 and they can immigrate. However, for purposes of this new case, it is only for those derivative beneficiaries and beneficiaries that have not only aged out, but cannot have their age determined to be under 21.
The CSPA in those cases under the particular provision of the CSPA, will have a petition that is automatically converted to the appropriate category. In other words, let’s say that in your example that an aunt petitioned your mother and you aged out and you cannot reduce your ‘immigration age’ to under 21. In that case, their application is automatically converted for a petition from your mother to you. This would be a Lawful Permanent Resident petitioning a son/daughter over the age of 21. This would be preference F2B.
Then the next part is the key. The CSPA allows you to then recapture or use the priority date of the petition from your auntie’s petition to your mother. As you stated, you were 3 years old when the petition was filed and you were about 24 years old when the visa number became current. This means, that under the CSPA (and now the 9th Circuit Class Action suit that agreed with the provision of the CSPA) that the priority date of the now automatically created petition is the SAME as the one your auntie filed for your mother. Therefore, the priority date will be basically over 20 years old the very moment the petition is automatically created. Since that number is now current, you can then come into the United States under this petition now. You have the petition and the visa number is current. Therefore, you can process right now to get the Green Card.
Question: So, what did the Ninth Circuit case do?
Answer: In fact, USCIS and other government agencies were denying this provision of the CSPA. They basically stated it was not supposed to do what was clearly in the law. Thus, now with the affirmation of the Ninth Circuit case, we can proceed forward with all of these CSPA cases.
Filed under: Immigration Attorney | Tagged: Brian D. Lerner, brian lerner, california immigration lawyer, child status protection act, cspa, Family Petition, Immigration, Immigration Lawyer, Law Offices of Brian D. Lerner | 6 Comments »
I don’t need $1,000,000 for the Green Card?
Question: I heard that there is a type of visa whereby I don’t need to invest $1,000,000 to get the Green Card, but rather can use my business knowledge and business. Is this true?
Answer: Yes, it is the much less known Multinational Manager Visa. This is where you have 2 companies in 2 different countries and will then be the manager or executive of both in order to apply for the Multinational Manager Visa for Residency for you, your spouse and unmarried children under 21.
Question: What are some of the specifics?
Answer: It is basically when you are the manager or executive of a company in your home country and then a subsidiary or branch office here in the U.S.
Question: How is manager defined?
Answer: Managerial capacity means an assignment with the organization in which the employee personally:(1) Manages the organization, department, subdivision, function or component; (2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
(3) Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and (4) Exercises discretion over day-to-day operations of the activity or function.
Question: How is executive defined?
Answer: Executive capacity means an assignment in an organization in which the employee primarily:
(1) Directs the management of the organization or a component or function;
(2) Establishes goals and policies;
(3) Exercises wide latitude in discretionary decision making; and
(4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.
Question: Is a Labor Certification or PERM required?
Answer: No labor certification, but a job offer by the U.S. organization, is required
Question: Must you be employed at the foreign company?
Answer: You must be employed abroad for one year (in last 3 years) by “firm or corporation or other legal entity or an affiliate or subsidiary thereof.”
Question: What is an affiliate?
Answer: Affiliates include entities owned and controlled by the same group of individuals, in approximately the same share or proportion of each entity. Includes accounting firms that have “internationally recognized name(s)” as affiliates, notwithstanding the fact that they are actually separate partnerships. Firms will be considered affiliates if they market accounting services under the same internationally recognized name and the same agreement. Under PL affiliate also includes management consulting firms that work with accounting firms as long as they market under an internationally recognized name or work with a successor worldwide coordinating organization even if it is not collectively owned or controlled. International management consulting firms that separate from an international accounting firm, yet continue to maintain the qualifying worldwide organizational structure may continue to use the EB-1 category even if it is no longer connected to an accounting firm.
Question: What must the petitioner establish for the ‘subsidiary’ requirement and working for the company?
Answer: Petitioner must establish: (i) it maintains a qualifying relationship (parent, affiliate, subsidiary) with the beneficiary’s foreign employer; and (ii) the foreign corporation or other legal entity that employed the beneficiary must continue to exist and have a qualifying relationship with the petitioner at the time the immigrant petition is filed. The wording of the section is confusing where the foreign entity continues to exist but the specific branch, affiliate, or subsidiary that the beneficiary worked for is out of business.
Basically, if you own a business or the owners want to open a branch office in the U.S., this might be the very way for you to come to the United States for you and your family.
Don’t have $1,000,000? Then try the Multinational Manager Visa to get the Green Cards for you and your family. Get a description from Immigration Attorney Brian D. Lerner