(Part 3 of 3)
Retaining the classification of a child makes the petition process easier and faster. Insuring your children do not "age out" and lose their chance for a visa is a critical concern for any immigrant parent. The Child Status Protection Act (CSPA) can be very helpful, but not always. There are many scenarios where CSPA may or may not apply for the beneficiaries of US Citizens and lawful permanent residents (LPR or green card holders), as discussed in the previous week’s column. Here are more scenarios that may assist you.
Q. I entered the United States on May 5, 2008 on K-1 Visa and my 17-year-old son on K-2 visa. My husband and I got married before my son’s 18th birthday, and I am now applying for my green card and work permit. Can my son apply for green card and work permit too? Is he going to have an aging out problem?
A. Yes, your son can also apply for green card and work permit. An immigrant petition from your US citizen husband must be filed together with your son’s green card and work permit application. Since the step relationship was established before his 18th birthday, your son would be treated as immediate relative and not subject to aging out.
Q. I came to the United States on K-4 visa and my mother on K-3 visa last year. We have not filed for adjustment of status immediately due to financial constraints but we are now ready to file our application. I just turned 21 and some friends told my father I am no longer eligible to apply for green card. Have I aged out?
A. Unfortunately you have aged out. Your US citizen father should have filed an immigrant petition before your 21st birthday and you could file for green card later. He can still file the petition for you under F-1 category (unmarried son or daughter of US citizen over 21).
Q. My employer petitioned me and I just got my green card. I want to bring my family to the United States but my oldest son already turned 21 two months ago. He was still 20 years old when I applied for adjustment of status. Could he still be considered derivative beneficiary and obtain a visa with his mother and two younger brothers?
A. Your son is no longer eligible for immigrant visa as derivative beneficiary. Your family could only apply for immigrant visa if you have an approved I-824, application for action on an approved application. The USCIS will notify the US Embassy that you have already adjusted your status so they can initiate the process of your family’s immigrant visa application. If your family were already here in the US when your priority date was current, your oldest son would have not aged out. Also, he would not have aged out if you applied for immigrant visa in your home country as they would be applying with you and your son was still under 21 at that time.
This concludes the three-part series, which provided a general idea on the Child Status Protection Act (CSPA) and sample scenarios where CSPA may or may not apply.
***
Atty. Joel R. Bander is the partner of Bander Law Firm, LLP. With over 15 years of litigation and immigration experience, Mr. Bander is a leading litigator and accomplished trial strategist. He has successfully handled numerous cases before Federal, State, Civil, and Criminal Judges and has participated in hundreds of arbitrations and trials.
Bander Law Firm, LLP Downtown office address: 1055 W. 7th Street, Suite 1950, Los Angeles, CA, 90017. Tel: (213) 873–4333 Fax: (213) 873–4334. San Gabriel Office address: 1045 E. Valley Blvd., #A215, San Gabriel, CA 91776. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
( Published on January 31, 2009 in Asian Journal Los Angeles p. C5 )
| < Prev | Next > |
|---|
