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.
Getting the green card through marriage
Is it easy to get a green card?
Filed under: Green Card | 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 | 10 Comments »
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 | 10 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.
(4)
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.
Filed under: EB-5 Investment Visa | Tagged: Brian D. Lerner, brian lerner, eb-1c, Immigration Attorney, Immigration Lawyer, multinational manager visa | Leave a comment »
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
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Question: I want to petition an orphan. What must I do?
Answer: A USC can petition for an orphan under age 16. In order to be an orphan, both parents must have died, disappeared, or abandoned the child. If there is a sole or surviving parent, he or she must be incapable of providing for the child and irrevocably release the child for emigration or adoption. The child must be under 16 and unmarried at the time the petition is filed on his or her behalf to classify as an immediate relative. The petitioner must be a USC. Natural siblings of the orphan are also eligible to immigrate if adopted abroad while under 18 by the same adoptive parent.
Question: Where must I adopt the child and can I adopt the child in the U.S.?
Answer: That will depend on what country you want to bring in the child as to whether it is a part of the Hague Convention. It would be necessary to understand some parts of the Hague Convention to answer this. Here are some basic rules:
Only USCs—not LPRs—may adopt and immigrate children subject to the Hague rules; The Department of State coordinates with the equivalent “Central Authority” or designee in the child’s home country and this foreign entity is heavily involved in the process; Adoption cannot serve as the basis for the child’s immigration unless they follow certain prescribed steps and sequences; The USC parents are prohibited from contacting the birth parents unless they fall within narrow exceptions; The adopted child must be under 16 when the decree is finalized or the I-800 is filed; there is no exception for children between ages 16 and 18 whose siblings have been adopted while under 16; and the definition of “adoptable” child is broader than orphan and includes those children whose: (1) single birth parent has relinquished control; (2) two living birth parents are incapable of providing care and have released the child for adoption; or (3) unmarried birth father, who can qualify as a “sole parent,” releases the child for adoption after the birth mother has abandoned the child.
Question: What countries are Hague Convention Countries?
Answer: Hague Convention rules apply to children who are “habitual residents” of one of the approximately 80 countries that have signed on to the international treaty. Some of the countries that have not ratified the convention include Kazakhstan, Russia, Guatemala, Ethiopia, and South Korea. Some of the ones that have ratified it include China, India, Mexico, and the Philippines.
Question: What are the procedures for applying, assuming that the child comes from a Hague Country.
Answer: Assuming the Hague rules apply, the following steps must be adhered to in this precise order. First, the prospective adoptive parent(s) obtain(s) an approved home study from an accredited provider, licensed in the state of the adoptive parent(s), and authorized to conduct such studies. The adoptive parent(s) then file(s) Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, with USCIS, along with the home study. USCIS may need to communicate with the designated adoption service provider.
After approval of the I-800A and home study, USCIS forwards these to the adoption service provider and the NVC, which in turn forwards to the Central Authority of the designated foreign country. That Central Authority then identifies a child and refers him or her to the prospective parent(s) along with a report on his or her medical and social background. If the family accepts the referral, they file Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, with USCIS. USCIS then provisionally approves the petition and forwards it to the appropriate U.S. Consulate.
The consular officer screens the child for admissibility and annotates the visa application with the child’s ability to immigrate following adoption. The officer also transmits the “Article Five Letter” to the Central Authority, which basically affirms that the adoptive parents may proceed with the adoption. The family then completes the adoption or guardianship process and submits the official decree to the consulate, which approves the I-800 and issues the immigrant visa (IH-3 or IH-4).
Beginning on September 25, 2008, USCIS expanded its direct mail program to include the forms I-800A and I-800. Applicants must now submit them to the USCIS Chicago Lockbox facility for initial processing using the following address: USCIS, P.O. Box 805695, Chicago, IL 60680-4118. These forms will then be forwarded to the National Benefits Center in Lee’s Summit, MO, which has assumed processing of these petitions.
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