Q & A August 14, 2005

Q & A 1.

Q&A 1.

Options for Children who Turned 21 After Parent’s Case Was Filed

Chen Reader asks:

My wife and I just came to U.S. from China under F4 category visa. My sister who is a U.S. citizen applied for my whole family in 1991, at the time my daughter was 12 years old. However, at the time of consulate processing, she was not included and was told that she had aged out.

How could I apply for my unmarried daughter to come to U.S. as soon as possible? Can I retain her old priority date when I apply for my daughter?

Dear reader:

The regulations have not yet been passed for implementing the Child Status Protection Act which was signed into law on August 6, 2002, to protect their rights of children in danger of aging out. At this time, interpretations of the U.S.C.I.S. and U.S. Department of State would not allow your daughter to immigrate using your old priority date. It is and has always been our view that children such as yours are eligible for retention of the old priority date, but the view has so far not been accepted. I do note that we did have success are recapturing the old priority 1991 date in one filing that we handled for an aged out child, but cannot say that this is a trend inasmuch as we did not receive the old priority date in 2 other cases. The argument that we used was the same in all 3 cases. It may very well take litigation to convince the U.S.C.I.S. to assign the old priority dates as contemplated in the CSPA legislation.

If you so desire, you can apply for an I-130 preference petition on behalf of your daughter as soon as you enter the U.S.. It might be a good idea to have your wife also do the same for safety's sake. You can also ask to have the old priority date given to your daughter, although that is far from assured. Other alternatives are the following: If your unmarried daughter has graduated from a university and speaks English, she may be able to come to the U.S. under an H-1B1 visa for a specialized worker if a U.S. organization is willing to sponsor her for the visa. She may also be able to qualify for other types of non-immigrant visas, although many of them require the applicant to show a non-immigrant intent. If she has skills which are in short demand in the U.S., an organization could sponsor for permanent residence and the immigration process could conceivably be completed in approximately three years.

Copyright © 2003 - 2005 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.