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Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:Child Status Protection Act: Explaining the new law
Jennifer Wipf: I'm calling Mr. Shusterman and turning on moderation.
Please remember that these questions and answers are of a general nature. Mr. Shusterman's replies cannot be construed as legal advice. Thanks and welcome.
#1: My DOB is 9th
August 1981. Green Card petition had been filed for my Dad by his brother under preference
category F4 on 26th July 1990. Our Priority date is current now. But I turned 21 on 9th
Aug 2002. We have just sent out the choice of agent form now and we expecting the dsl
forms. So will I be able to accompany my parents under the new Act ? Do we have to submit
any papers to our consulate to inform them about my aging out problem?
First of all, it is necessary to
determine your age on the date that a visa number became available to you, the day that
your priority date became current that is. Second, the amount of time that your uncle's
visa petition remained pending, must be subtracted from your age when your visa number
became current. Finally, assuming this subtraction results in 'immigration age' of under
21, you must apply for an immigrant visa if you are abroad, or for adjustment of status if
you are in the United States within one year.
Carl Shusterman: The 2A category is backed up to January 8, 1995 for persons born in Mexico while the 2B category for unmarried children of permanent residents who are over 21 years of age is currently unavailable.
From your example, it is clear that you turned 21 many years before the passage of the Child Status Protection Act. Generally, the Act is not retroactive. Although, I don't know the complete facts in your case, my best guess is that you will not benefit from the new law.
You should explore other ways of
immigrating to the United States, for instance, the employment based categories. Good
Carl Shusterman: Again, the Act is not generally retroactive. If her children had aged out in January of 2000, when your sister became a permanent resident, it is not likely that they will be able to obtain benefits under the Act. However, if your visa petition was pending many years with the INS before it was approved, there is always a chance that your nieces and nephews might have immigration ages of under 21 under the formula.
That is not the end of the analysis.
The final section of the law provides that the law is effective for derivative
beneficiaries only if:
2) A visa petition was pending on or after the date the law was enacted;
3) An application for a green card
based on the visa petition was pending on or after the date that the law was enacted.
My own wife immigrated from the Philippines. When she became a citizen in the United States in the late 1970s, she petitioned for some of her brothers and sisters. By the time the priority dates became current for her siblings, most of their children had aged out and they decided not to immigrate to the United States because of this.
However this is not the situation
addressed by the Child Status Protection Act. In order to make this complex law easier to
understand, I compiled a ten question FAQ even before the law was signed by the president,
and I posted it on my Website. Please see
Question #4: I am presently 32 years old. I am in US
for the last almost 7 years on an H-1 visa. My sister is a US citizen and applied for
green cards for my parents this first week of July. I recently went to India and got
married on 7th August 2002 and the law came on 6th August 2002 (I had no clue about the
law at that time). Is there anyway that me and my wife can take advantage of this Child
Protection law by stating that at the time of application of green cards for my parents I
was unmarried and apply under the family based category?
However, since the 4th preference category for India is in 1990 and since all the employment based categories are current, I would advise you to explore the possibility of immigrating through your job.
Jennifer Wipf: Since we have no questions left that do not involve retroactivity, we are going to go over what the law actually does do.
Examples of the law:
Example 4: A permanent resident parent applies under the 2B category for his adult unmarried daughter who was born in the Philippines. Before the daughter becomes a permanent resident, the parent becomes a naturalized citizen of the US. For Filipinos, the parent's naturalization has the unwanted consequence of delaying the daughter's permanent residence for several additional years. Under the new law, the daughter can choose to remain in the 2B category even though the petitioning parent has naturalized.
Also, the new law applies to refugees, asylees and winners of the diversity visa lottery.
We have discovered that quite a few of
our clients benefit from the new law, including one family who came to us after their
children had been ordered deported, because they had been automatically converted to a new
preference category when they turned 21 years of age. We have submitted motions to remand
their case to the Board of Immigration Appeals, and will later ask an immigration judge to
adjust their status to permanent residents.
Jennifer Wipf: Our
time has run out. Thank you all for attending, and I'm sorry it was bad news for most of
� Peter and Jennifer Wipf 1999-2002. All rights reserved. No duplication without explicit written permission.
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