Q & A August 24, 2003

Q & A 1

Dear Mr. Lee:

My daughter petitioned for her brother’s family (the couple and the daughter) to immigrate to the U.S. It was done in 1997. Later, the INS sent a notice, saying that the petition was approved, all the documents were sent to Gongdong Consulate, and that the due date will be notified.

Question:
1. If at the time when the interview comes, the daughter’s age is over 21 years old (unmarried), will it affect her immigration visa?

Zhang
California

Dear reader:

The Child Status Protection Act (signed into law on August 6, 2002) affects all cases pending as of the day of the law's enactment where the child was under the age of 21. Since the case is still pending, it would be treated as a CSPA case. The issue, therefore, still is whether the child will be able to benefit from the CSPA. While BCIS & the Department of State have said that this would be a CSPA case, they have not elaborated on how they would treat the specific individual involved. Your daughter petitioned for her brother under the F-4 category for siblings which is backlogged to August 15, 1991 under the visa bulletin for July 2003. The brother will not immigrate for many years. If the priority date becomes current and the child is still under 21 (or is over 21 but counted as under 21 because she is allowed additional time due to the length of visa petition processing and the applicability of the U.S. Patriot Act), she will undoubtedly come with the parents. However, if the time calculations are done and the daughter is determined to be over the age of 21 for CSPA purposes, the question is whether BCIS/DOS will say that her lock-in date for benefits expired because it came years after she turned 21 and she is not entitled to any, or whether they will say she is still entitled to CSPA benefits through the retention of the parents’ priority date even though she is not a child for CSPA purposes. If the latter interpretation is given, the most likely scenario would be for the parents to immigrate first and then for the aged-out child to immigrate under the appropriate category using the old priority date.

Copyright © 2003 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.