Q & A December 19, 2004

Q & A 1.

Q&A 1.

CSPA allows time during which the I-130 petition was pending with legacy INS to be credited toward CSPA eligibility

Ginny Reader Asks:
My sister is a US citizen. She filed an application for my family who lives in Taiwan to immigrate to US. The application was approved and the priority date was 8/16/1991. At the time, my daughter was only 10 years old and now she is 22 (born on 12/30/1981) and has aged out. Could I apply my daughter under CSPA act?

Here is the background:
Last year, NVC sent my sister a package, which included DS-230 (part I) and fee bills for my husband, my daughter and I. My sister mailed NVC the fees and DS-230 (part I) in December of last year. However, the interview letter from AIT only indicated my husband and my name without my daughter. Why did it only allow interview for 2 people but accepted fees for 3, was it because of her aged-out?
Because my sister had been moved, therefore, she did not receive any correspondence from NVC. I started to trace my immigration visa case on 1/21/2003. Later I found out that I had 2 case numbers. Therefore, I was unable to request to expedite my case. I believe my daughter’s rights were jeopardized and delayed due to the wrong case numbers.
My daughter went to US in 1996 and will be graduating from college this year. Please advise how could I help my daughter obtaining her green card.

Dear reader:

The CSPA is a complex piece of legislation which the U.S.C.I.S. and Department of State (DOS) have been interpreting through a series of memoranda, but there has not yet been an official regulation on its implementation. Both the U.S.C.I.S. and DOS have thus far held the view that the date on which age is frozen for a dependent child is the date that the priority date becomes current. In looking at past visa charts, your priority date of August 16, 1991, first became available in August 2003. Your daughter was born on December 30, 1981, and her ageing out on December 13, 2002 predated the priority date's becoming current in August 2003. The CSPA does allow the time during which the I-130 petition was pending with legacy INS to be credited toward CSPA eligibility. Therefore if legacy INS took 10 months to adjudicate the I-130 petition, your daughter would be eligible to immigrate under the current accepted interpretation of the CSPA.

If she is unable to qualify under this counting process of the CSPA, you should be aware that the alternate interpretation that we have been espousing for over a year is that the CSPA allows aged-out children who cannot be considered to be under the age of 21 under the counting process to nevertheless assume the priority dates of their parents and immigrate under the F-2B category for unmarried sons and daughters of permanent residents. As the priority date of all F-4 sibling cases is current under the F-2B category, the aged-out child should be able to immigrate very quickly. Our interpretation, however, has not yet been accepted by either the U.S.C.I.S. or DOS, and may have to be litigated in a federal court to determine its legitimacy

In your daughter's case, she is most likely entitled to optional practical training upon her graduation from college. If she has an employer who is willing to sponsor her for an H-1B working status and later permanent residence, such would be an option. You could also submit an I-130 petition for her at the present time as a backup in the event that the CSPA argument fails or she has no willing and able U.S. employer to sponsor her immigration. As a backup, her waiting time would be shortened if and when you become a U.S. citizen.

Copyright © 2003 - 2004 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.