Q & A November 9, 2003
Q & A 1 2
Dear Mr. Alan Lee
I am an American citizen. In January of ’93, I filed a petition
for my sister to immigrate to the United States from China. The
petition was approved and the priority date was set at March of
’93. My sister’s child was 15 years old at the time
when the petition was approved. But now her child has aged out because
she has turned 22.
Question:
Under the CSPA, if my sister immigrates to the United States in
2005 with her child, who will be 24 at that time, will the child
be able to come with her?
Pan
Dear reader:
At this time, the BCIS (Bureau of Citizenship and Immigration Services)
has not set forth final regulations for the CSPA. As you are aware,
my complaint against the various guidances provided so far by BCIS
are that the interpretations are restrictive and incomplete (not
addressing a variety of situations at this time). I believe that
a more reasonable interpretation of the CSPA (Child Status Protection
Act) would allow a derivative beneficiary like your sister's child
to assume your sister's priority date and immigrate with his sister's
priority date under the "appropriate category", as provided
by statute. Under current BCIS/DOS (Department of State) interpretations,
your sister's child would not be able to immigrate as the petition
was approved much before August 6, 2002, the enactment date of the
CSPA, and the child aged out prior to the date of enactment. (I
assume from your question that the petition took only two months
to approve in 1993). BCIS/DOS have stated that where the petition
is approved before August 6, 2002, the applicant is not eligible
for benefits under the CSPA unless no "final determination"
on an adjustment of status or immigrant visa application had been
made by that date. DOS has further stated that it would consider
that a final determination is made automatically on the ageout date
of the child.
Dear Mr. Alan Lee
My Green Card currently is conditional, and it’s due in June.
I’ll be able to apply for a permanent one afterwards. Before
marrying to a U.S. citizen, I had petitioned for political asylum.
My daughter, who was born in 1988, came to the U.S. as an asylee
dependent. Her custody belongs to my ex-husband, who is in China.
It will be a long time for her to obtain the Green Card if either
she files for herself as an asylee dependent, or I, a Green Card
holder, petition for her.
Questions:
1. What should we do in order for her to obtain the status?
2. As the stepfather, my husband can petition for her, but we don’t
have the custody. Is it possible to do so?
Zhao
Dear reader:
- If your husband is willing to sponsor your daughter for permanent
residence, he can do so as she is considered his child for immigration
purposes since your marriage was celebrated prior to your child
turning the age of 18.
- It is certainly possible for your husband to petition for your
child. However, at the adjustment of status interview, you may
be asked to provide evidence that your ex-husband has consented
to her staying in the United States with you under permanent residence
status. If he does not consent, you can either wait until your
daughter reaches the age of consent or you attempt to obtain a
modification of custody.
|
