World Journal Weekly Q & A - June 24, 2007F-2B Beneficiaries Retain Priority Dates When Upgraded to F-11 When Parent NaturalizesTina asks: My husband and I entered the U.S. from Taiwan with green cards in 2006. I have two sons born in 1978 and 1981 respectively. Both are single. We would like to apply U.S. residential status for them. Should we apply now through our green card status or wait until we become U.S. citizens. Which is faster and better? Dear reader: You and your husband should apply for your sons at this time with
your green cards. Currently the F-11 category for unmarried sons
and daughters of U.S. citizens is only available for those filing
before June 1, 2001 under the June 2007 visa chart. If you apply
at this time with your green cards under the F-2B category for unmarried
sons and daughters of permanent residents, you will still be able
to retain the priority date for when you become U.S. citizens. In
such event, you could request an upgrade from F-2B to F-11 so long
as your son did not marry in the interim. If you were to wait until
the time that you became citizens to apply, you would have to wait
for the F-11 priority date to clear whereas there is a good chance
that the date may be clear on your day of citizenship if you applied
for your sons previously. ( Kindly note that the above is applicable
to the law as it exists today and does not take into account any
legislation in the future which may change the immigration system.)
Notification of Divorce Will Allow F-3 Beneficiary to Immigrate Faster Under F-11 Category for UnmarriedTung asks: I’m an U.S. citizen. My petition for my married son to immigrate to the U.S. in June 2001 was approved. My ex-daughter-in-law (divorced in 2003) and two grandchildren were all listed in the petition form, and now they are waiting for the priority date to become current. My oldest grandson is already 21 years old. Is he under the protection of CSPA and can he adjust his status concurrently with my son? When the priority date is reached, what should I do about his “aging-out”? Can my former daughter-in-law adjust her status concurrently as well (even though they are divorced, the original application has not changed) Dear reader: For the month of June 2007, current visa availability for unmarried sons and daughters of U.S. citizens is up to June 1, 2001. If your son is overseas and if you have not already done so, you should notify the National Visa Center of his divorce in order that he may immigrate quickly to the States. Under the F-3 category for married sons and daughters of U.S. citizens, he may have to wait at least another two years as the visa bulletin for June shows that only those who filed before May 15, 1999, are presently being scheduled for final immigration interviews at the consulates. If your son is in the U.S. and eligible to adjust status to permanent residence without leaving the country, he can wait until the time that the priority date is current and file an adjustment of status application (I-485) with proof of his divorce. Insofar as your oldest grandson is concerned, it is difficult to state whether he is under the protection of the CSPA as there are not enough facts in your question to give an opinion. The general rule of thumb is that an applicant's age is frozen for immigration purposes under the CSPA only when the priority date becomes current, but that he/she is credited with the period of time that the I-130 petition pended at legacy INS prior to approval. We have also successfully argued that a 45 day credit is given under the U.S. Patriot Act. Readers should also note that interpretations of eligibility under the CSPA are subject to change as final regulations have not been written and there have been numerous administrative and court challenges to the current restrictive interpretations of the CSPA by U.S.C.I.S. and the U.S. Department of State. I suggest that you or your son consult with a knowledgeable immigration lawyer at this time for a determination of your oldest grandson's eligibility as the priority date is very close to becoming current under the F-11 category. On the subject of your former daughter-in-law, she is clearly not eligible to immigrate with your son as she lost her eligibility when they divorced. Any further attempt to have her immigrate on this basis might be construed as an act of fraud. Circumstances Under Which Child Born Overseas Can Be a U.S. CitizenGuo asks: I was born in October 1986. My mother is an U.S. citizen. She petitioned me to come to the U.S. in July 2003. During my interview in Guangzhou Consulate in 2005, I was asked for a DNA testing. My mother and I completed the DNA test in April 2006. I passed the interview in July, and arrived in the U.S. in August 2006. I received my green card in September 2006. I heard that when U.S. citizens petition for their child, during the petition if the child is under the age of 18, the child can automatically become U.S. citizen. Is it true? If it is, what is the process? Dear reader: It is not clear from your question whether your mother was a U.S. citizen at the time of your birth in October 1986. Under the laws in effect at the time of your birth for children born in wedlock abroad of U.S. citizens, you could claim U.S. citizenship if your mother was physically present in the U.S. or a possession of the U.S. for 10 years prior to your birth, 5 of which occurred after the age of 14. If you were born out of wedlock to a U.S. citizen mother, the law provided that you could be recognized as a U.S. citizen if your mother was physically present in the U.S. or a possession of the U.S. continuously for 12 months prior to your birth. In the event that you do not meet the transmission requirements on your date of birth, you would not appear to be eligible for citizenship at this time. The Child Citizenship Act which went into effect on February 27,
2001, only applies to children under the age of 18 when the parent
becomes a U.S. citizen under two circumstances - 1.) if the child
is also a permanent resident and in the legal and physical custody
of the citizen parent, or 2.) the child is in the legal and physical
custody of the U.S. citizen parent outside the U.S., is in the U.S.
temporarily on a lawful admission, is maintaining status, and the
U.S. citizen parent or grandparent has been physically present in
the U.S. for five years, at least two of which were after the age
of 14. Applicant with Overdue Priority Date & No Consul Interview Schedule Should InquireHuang asks: I immigrated to the U.S. in October 1996. 2 days later I applied for my 17 years old son to immigrate. In July 2005 National Visa Center notified me to do an Affidavit of Support. I completed it and sent back to National Visa Center. National Visa Center then informed us that all information was sent to Guangzhou Consulate to process and told us to wait. We’ve been waiting for over a year and the Consulate has yet to notify us for visa processing. Is there a problem with my son’s case? Why does it take so long? Dear reader: I assume that you applied for your 17 year old son under the F-2A category (unmarried child of a lawful permanent resident), but that your son slipped into the F-2B category (unmarried son or daughter over 21 of a lawful permanent resident) upon turning the age of 21. At this time, visa availability for the month of June 2007 shows that immigrant visas are available for F-2B individuals filing before December 1, 1997. If you have not yet heard from the consulate in Guangzhou by this time, there would appear to be a problem with the case. In that event, I would suggest that you or your attorney communicate directly with the consulate in Guangzhou to ascertain that it has the approved petition and if so, request that it be processed immediately. If on the other hand there is a problem with transmission of the petition from the National Visa Center to the consulate in Guangzhou, you or you attorney should also communicate with the National Visa Center to have it attempt to put your son's case back on track.
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Copyright © 2003-2007 Alan Lee,
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