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The Social Security Dilemma of Nurses

Posted on January 28, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a nurse and have just passed the NCLEX. I have a hospital who is more than willing to sponsor me. However, I have a big problem. In order to apply for the Green Card through the Nurse Petition, I need to have my unrestricted State License. Under normal circumstances people can get their license as soon as they pass the NCLEX. However, I cannot get my license without a social security number. I cannot get a social security number without a work permit. So, I am stuck. I am so close to getting the Green Card, yet not able to continue. Is there anything I can do?

ANSWER: Yes there is. This has been a considerable problem. It is a very unfortunate problem in that there is a severe shortage of nurses in the United States. Because of that shortage one would think that the INS regulations would not put up so many hurdles to bringing nurses into the country. The INS has finally seen this dilemma and now has created a solution.

Unfortunately the NCLEX is only offered inside the U.S., and therefore, it is necessary for many nurses who come here on visitor visas to take the NCLEX while in the U.S. However, while on a visitor visa, the nurse does not qualify for the social security number.

The irony of this is that these people would have to go back to their home country to take the CGFNS, wait outside the U.S. for over one year, and then come back in the country as a lawful permanent resident. The CGFNS does not mean that the nurse is licensed to practice nursing in the United States. Rather, it states that a nurse is likely to pass the NCLEX when she/he arrives in the United States. Once inside the U.S., then the nurse must take the NCLEX. Here is the irony. A person who has passed the NCLEX already, but cannot get the social security card had to go back to their home country to take the CGFNS in order to show that it was likely that they would pass the NCLEX.

Sometimes it is silly laws like this that prompt action to be taken. Now, the Immigration and Naturalization Service will accept a nurse petition upon presentation of a certified copy of a letter from the state of intended employment which confirms that the alien has passed the NCLEX examination and is eligible to be issued a license to practice nursing in that state.

QUESTION: Now that I know that I can submit the application for the Nurse Petition with proof of passing the NCLEX, when can I adjust my status to that of a lawful permanent resident?

ANSWER: Now, because you are immediately eligible to file the nurse petition, otherwise known as the I-140, you are also eligible to file for the adjustment of status simultaneously. This means that you can file both the I-140 nurse petition and the I-485 adjustment of status petition at the same time. You will get your temporary work permit in about 90 days and then be able to legally work while awaiting final approval on both the I-140 and the I-485 adjustment.

 QUESTION: Will I be able to leave the United States while I am awaiting the results of the I-140 and the I-485?

ANSWER: Yes. You can apply for what is known as Advance Parole. This will allow you to leave the United States while the petition is pending and to return without a problem.

This new regulation is most welcome. Hopefully, the INS will see other types of problems in the future and amend the regulations to ease the problems in applying for the visas.

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Title: I’m over 21, but the law says I’m under 21

Posted on January 8, 2026 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that the Child Protection Act has been passed on August 6, 2002. However, I am still confused if I fall under this provision. Can you help to clarify?

Answer: Yes. The Child Status Protection Act (CSPA) makes certain allowances for people who have become older than 21 years old, but can still have their applications processed as though they are under 21 years old.

IMMEDIATE RELATIVES: The first category is Immediate Relatives. These people will be able to be considered to be able to immediately apply to adjust their status to that of a Lawful Permanent Resident, even though they may be over 21 years old. If you are in the U.S. and want to adjust your status to that of a Lawful Permanent Resident, there are a couple of grounds upon which to do this under the Immediate Relative provisions of the CSPA.

If you are under 21 years old when a petition is filed for you by your U.S. Citizen parent, you will be considered to have not ‘aged-out’ even if your status is not adjudicated until after you are 21 years old. The critical factor will be when the initial I-130 is filed. It is how old you are on the date the I-130 is filed that will determine if you remain a “child” for purposes of not ‘aging-out’.

Question: What if my parent was a Lawful Permanent Resident when the I-130 was filed, and later became a U.S. Citizen?

Answer: In that case, the critical date that will determine if you are a child who will not age-out will be the date your parent became a U.S. Citizen, not the date the I-130 was filed. For example, let us say that the I-130 was filed when you were 18, and your parent naturalized when you were 20 year old. In this example, even if the adjustment was not done until after you were 21 years old, you would be considered to remain at 20 years old and therefore, not to have aged-out when you turn 21 years old. It makes it critically important that your parent become a U.S. Citizen right way if they are eligible if you happen to be less than 21 years old.

Question: What if my parent is not eligible to become a Naturalized U.S. Citizen? Can I still avail of the CSPA?

Answer: In this case, the date that the Immigration and Naturalization Service will look at to determine if a person is a ‘child’ under the CSPA will not be when the I-130 is filed, nor when the parent would become a U.S. Citizen, but rather, when the priority date becomes current. It is critically important that if you fall under this category, that you make certain that you file for Adjustment of Status within ONE year of the priority date becoming current. Otherwise, you cannot fall under the provisions of the CSPA.

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Why am I penalized because my father became a U.S. Citizen?

Posted on May 27, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been waiting many years to become a Lawful Permanent Resident. My father petitioned me many years ago. My priority date was almost current, and then my father became a U.S. Citizen. Afterwards, I actually had to wait many more years. He only became a U.S. Citizen because he thought it would speed up the process. Is there anything I can do?

Answer: Actually, the Child Status Protection Act (CSPA) had a provision that addressed your exact concern. On August 6, 2002, the President signed into law the Child Status Protection Act (CSPA), Public Law 107-208, 116 Stat. 927. Section 6 of the CSPA allows for unmarried sons or daughters of lawful permanent residents (LPRs) to remain classified as second preference aliens, even if the LPR parent naturalizes. In other words, this provision actually applies only to people from the Philippines at this point as in the rest of the world the priority date is years closer when the parent petitioner becomes a U.S. Citizen.

Section 6 of the CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also provides the unmarried son or daughter the ability to request that such transfer not occur. There are certain instances when the visa availability dates are more current for the unmarried sons or daughters of LPRs than for the unmarried sons or daughters of United States citizens. In such instances, it would be to the advantage of the alien beneficiary to request that the automatic conversion to the first preference category not occur because a visa would become available sooner if the alien remained in the second preference category than if he converted to the first preference category. As of this date, the Department of State Visa Bulletin shows that visa availability in the first preference category is more current than for the second preference categories, except for beneficiaries from the Philippines. As such, it is anticipated that only beneficiaries from the Philippines will seek to take advantage of the CSPA.

Question: I heard about the CSPA and was told to write a letter that I wanted to go back to the 2nd preference, not to stay at the 1st preference which I automatically was move to at the time my father had petitioned me. I did not know who to write the letter to, but sent off such a letter requesting to be changed to 2nd preference. However, to date nothing has changed.

Answer: I agree that this has been a problem. In the past, we would write Immigration and they would tell us to write the National Visa Center. Then, we would write the National Visa Center and they would tell us to write Immigration. It was a game of finger pointing without any resolution. However, guidance from Immigration has just come out.

All beneficiaries in the Philippines wishing to opt out of the automatic conversion must file a request, in writing, addressed to the Officer in Charge, Manila. The Officer in Charge shall provide written notification, on official U.S. Citizenship and Immigration Services letterhead, of a decision on the beneficiary’s request to the beneficiary and to the Department of State’s visa issuance unit. If the beneficiary’s request is approved, then the beneficiary’s eligibility for family-based immigration will be determined as if his or her parent had never naturalized and they will remain a second preference alien.

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