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Another win for the Law Offices of Brian D. Lerner

Family I-130’s approved with different issues. Now family can proceed with consulate processing for the Green Card.

The CSPA new case and how to apply for the Green Card even if you aged out

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.

Can I still Immigrate to the United States as a child even though I am 26 years old?

Question: My Father petitioned me years ago and I am just getting around to applying. However, I am over 21 years old. I heard about the CSPA. What is it and how can it help me?

Answer: The CSPA stands for Child Status Protection Act and it is meant for persons in your situation. It came into being on August 2002. There are different provisions, but there are some parts that should apply to you right away.

First, under the CSPA, if the petitioner is a U.S. Citizen, and the age of the child is under 21 years old, then the age is locked in under Immigration Law under the CSPA. Thus, if you were petitioned by your father when you were 20 years old and now your are 26 years old, that is not a problem. Under the CSPA, you are 20 years old – even if you are really 26 years old. Your age will never change under the CSPA in this instance. Thus, you can apply for adjustment of status at any time as a child.

Question: What if my father was only a Lawful Permanent Resident as the petitioner?

Answer: In that case, there is some more analysis that must be done. However, the first thing to look at is whether he qualifies to become a U.S. Citizen before you would turn 21 years old. If he qualifies, then he should apply right away. If you were to approach 21 years old, then he could get the Naturalization expedited. As long as he would become a U.S. Citizen before you were to turn 21 years old, then your age will be locked in under the CSPA and you will never have to worry about aging out.

Question: What if I’m not so lucky and my father does not qualify for Naturalization?

Answer: In that case, then we must look under another provision of the CSPA. In this case, or in any other case where the petitioner is not a U.S. Citizen, there is a several part analysis that must be made. 1. You must find out when the visa number became current. This is done by looking at the visa chart on the first of the month and year upon which it became current. 2. You must then look at how long the I-130, I-140 or I-526 or Diversity Lottery Application was pending. Generally, look at when it was filed and then when it was approved. 3. Take your age on the date the visa number became current and subtract the time the petitions listed above were pending. This is your age for CSPA purposes. If it is under 21, then you are a child for CSPA purposes. 4. Then you have 1 year from that time in which to take action on the petition. If you do not, then you will not be able to fall under the CSPA.

Question: I heard there is some part of the CSPA that applies specifically to Filipinos. What is that?

Answer: While it does not specifically list Filipinos in the law, it clearly was meant to help Filipinos when the following situation arises. Normally when the petitioner is a Lawful Permanent Resident and the beneficiary is a son or daughter over 21 years old and the petitioner then becomes a U.S. Citizen, the visa waiting list time is much less (years less.) However, it is actually backwards in the Philippines. Thus, under the CSPA when the preference automatically changes from preference F2b to preference F1, the beneficiary can elect to actually go back to preference F2b so that they do not have to wait multiple years more because the petitioner became a U.S. Citizen.

Question: What about if the beneficiary is a child of the mother or father actually being petitioned by the grandparent or uncle?

Answer: In this case, there is considerable dispute in Immigration as to how they handle these cases. However, the law states essentially that the aged out child will be able to basically use the same old priority date and consular process or adjust without having to wait the many years it normally takes for such a petition. It is a great provision, but many times you will have to fight to get USCIS to approve it.

Thus, while there are several provisions under the CSPA, if they are not used or not applied correctly, then there will be many years of needlessly waiting.

My USC Spouse Died in War. Now What?

My USC Spouse Died in War. Now What?

Question: I was married to a marine for only a short period. He was going to petition me, but to my dismay, he got killed in Iraq. What can I do now?
Answer: I am sorry to hear of your loss. However, under immigration laws, it is still possible to immigrate through a self petition. This situation permits self-petition by the spouse, parent or child of a USC who served honorably in the Armed Forces and died as a result of injury or disease incurred in or aggravated by combat as long as the petition is filed within 2 years of the USC’s death. Spouse may not have been legally separated at the time of the spouse’s death and may not remarry during the petitioning process. A child may apply even if he turns 21 or marries after the USC’s death. A parent of the deceased USC may file an immediate petition even if the deceased USC child was under 21 years of age. Public charge is waived as a ground of inadmissibility. The petition is made on an I-360 and an I-485 may be filed concurrently.
Question: So, even my child who was born in my home country can be petitioned under this provision?
Answer: Yes. The normal types of petitions and limitations do not apply here. Thus, if you have any family member of a deceased armed services personal, you should get a consultation as to whether they may apply for this special self-petition. Remember, there is only a 2 year timeframe in which to do it before it is no longer available.
Question: I have a friend who is in my unfortunate situation as well. We used to talk while our spouses were at work. Unfortunately, her husband was only a Lawful Permanent Resident, not a U.S. Citizen. Is there anything she can do?
Answer: A spouse, parent, or child of an LPR who honorably served, died as a result of injury or disease incurred in or aggravated by combat, and who posthumously became a USC, can self-petition as an immediate relative if filed within 2 years of LPR’s death. The spouse, parent, or child is also eligible for deferred action, advance parole and work authorization. Public charge is waived as a ground of inadmissibility. Thus, tell your friend to first file what is necessary to get her deceased husband posthumous citizenship. Afterwards, she can file for the exact same thing you are filing for to obtain residency.
Question: What if already had a petition filed by her lawful permanent resident husband and then her husband was killed in action?
Answer: A spouse, parent, or child of a USC who served honorably in active duty status, who died as a result of injury or disease incurred in or aggravated by combat, and who was granted posthumous citizenship may adjust his or her status to LPR if the adjustment was filed prior to the USC’s death.
Question: What qualifies exactly for the armed services personal to be killed in action?
Answer: USCIS has defined “died as a result of injury or disease incurred in or aggravated by combat” to mean: (1) the death is attributable to an injury or disease for which the member was awarded the Purple Heart; or (2) the death resulted from an injury or disease that was incurred or aggravated: (a) as a direct result of armed conflict; (b) while engaged in hazardous service; (c) in the performance of duty under conditions simulating war; or (d) through an instrumentality of war. Armed conflict includes instances when the service member was a prisoner of war or while escaping or attempting to escape. Hazardous service includes aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty. Conditions simulating war includes military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction course, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. Instrumentality of war includes a vehicle, vessel, or device designated primarily for military service and intended for use in military service but may also include instrumentalities not designated primarily for military service if its use subjects the service member to hazard or risk peculiar to military service. It may therefore include wounds caused by a military weapon, accidents involving a military combat vehicle, or injury or sickness caused by fumes, gases, or explosion of military ordinance, vehicles or material.
Thus, if you are in the unfortunate situation of having a family member who falls under the above situation, be sure to get a consultation as to whether they might be able to self-petition under these provisions of law.

How the Policy Review will change USCIS policy

A USCIS news release and Q&As on the agency-wide Policy Review including the first 10 issue areas for review, public survey results and how the Policy Review will change USCIS policy. The issue areas include H-1Bs, family-based adjustment of status, Form I-601 and more.

Can you immigrate to the United States?

Question: I would like to know if I am eligible to come to the United States and immigrate so I can get my Green Card. I am very confused and am unsure of the possible ways. Can you shed some light on this subject?

Answer: Through family-based immigration, a U.S. citizen or LPR can sponsor his or her close family members for permanent residence. A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), children, and brothers and sisters. An LPR can sponsor his or her spouse, minor children, and adult unmarried children. As a result of recent changes in the law, all citizens or LPR’s wishing to petition for a family member must have an income at least 125% of the federal poverty level and sign a legally enforceable affidavit to support their family member.

Through employment-based immigration, a U.S. employer can sponsor a foreign-born employee for permanent residence. Typically, the employer must first demonstrate to the Department of Labor that there is no qualified U.S. worker available for the job for which an immigrant visa is being sought.

Through various special related visas for religious persons or multinational managers.

As a refugee or asylee, a person may gain permanent residence in the U.S. A person located outside the United States who seeks protection in the U.S. on the grounds that he or she faces persecution in his or her homeland can enter this country as a refugee. In order to be admitted to the U.S. as a refugee, the person must prove that he or she has a “well-founded fear of persecution” on the basis of at least one of the following internationally recognized grounds: race; religion; membership in a social group; political opinion; or national origin. A person who is already in the United States and fears persecution if sent back to his or her home country may apply for asylum in the U.S. Like a refugee, an asylum applicant must prove that he or she has a “well-founded” fear of persecution based on one of the five enumerated grounds listed above. Once granted asylum, the person is called an “asylee.” In most cases, an individual must apply for asylum within one year of arriving in the U.S. Refugees and asylees may apply for permanent residence after one year in the U.S.

Question: How many immigrants are admitted to the United States every year?

Answer: Family-based immigration is limited by statute to 480,000 persons per year. There is no numerical cap on the number of immediate relatives (spouses, minor unmarried children and parents of U.S. citizens) admitted annually to the U.S. as immigrants. However, the number of immediate relatives is subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year (with a floor of 226,000). Employment-based immigration is limited by statute to 140,000 persons per year. The United States accepts only a limited number of refugees from around the world each year. This number is determined every year by the President in consultation with Congress. The total number of annual “refugee slots” is divided among different regions of the world. For fiscal year 2003, the number of refugee admissions was set at 70,000.

The numbers may sound like a large amount. However, since so many people want to come into the U.S., there are many people who have to wait 10 to 20 years to have their turn to enter the U.S. as a Lawful Permanent Resident.

Can I Petition My Adopted Sister?

Question: How Do I Bring a Sibling to Live in the United States?

Answer: This information is for U.S. citizens who wish to bring a sibling to live permanently in the United States. Only U.S. citizens can bring their siblings to live permanently in the U.S. Lawful Permanent Residents can not.

First, you must know exact how the USCIS defines a sibling. A sibling is a brother, sister, stepbrother, stepsister, or adopted brother or sister. For the necessary sibling relationship to exist, each person must have been a child of at least one of the same parents. The siblings need not share the same biological parents as long as both became “children” at the appropriate time (before the age of 16 in cases of adoption, and before the age of 18 for stepchildren).

Question: What must I do since I am eligible to petition my sister?

Answer: A legal immigrant (or “lawful permanent resident”) is a foreign national who has been granted the privilege of living and working permanently in the United States. There is a three-step process for your brother or sister to become a legal immigrant: 1. The USCIS must approve an immigrant visa petition that you file for your brother or sister. Keep in mind that the USCIS is not actually ruling on these petitions until a visa number becomes available. 2. The State Department visa bulletin must show that a sibling immigrant visa is available to your sibling, based on the date that you filed the immigrant visa application. 3. If your brother or sister is outside the United States when an immigrant visa number becomes available, your brother or sister will be notified to go to the local U.S. consulate to complete the processing for an immigrant visa. If your sibling is legally inside the U.S. when an immigrant visa number becomes available, he or she may apply to adjust status to that of a lawful permanent resident using the Form I-485.

Question: How long must I wait for the visa number to become current?

Answer: Depending on the relationship and the country involved, the wait for an available sibling visa number may be several years. Unfortunately, for people from Mexico and the Philippines, the wait can be as long as 20 years.

Thus, keep in mind that many people such as your sibling sister may be able to come to the United States with an employment based visa much faster. If she has a college degree, she may be able to get an H-1B. She could also get an employer to sponsor her for a Labor Certification which would not take nearly as long.

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