Q & A March 21, 2004

Q & A 1

Dear Mr. Lee,

My sister, the petitioner for my brother, got the I-130 approval on June 26, 1990. My nephew’s name was on the application list.

On August 22, 1990, my brother got a letter from AIT, notifying him that his case was in processing. On January 14, 2002, when my brother’s priority date was close, the National Visa Center mailed a letter to him, asking him to assign an agent, who was the petitioner, my sister. On April 1, 2002, my sister got a letter from the NVC, telling her that the NVC had completed its processing on this case and it was transferred to AIT. She also got some forms and package to be filled by her and my brother. My nephew’s name wasn’t on those forms and documents. On February, my brother came to California, and finished his final step to get his Green Card.

My nephew was removed from the application between August 5, 2001 and August 6, 2002, because he aged out (his DOB is August 3, 1977.) We never got any notices, informing us that he had been rejected.

Questions:

1. Is my nephew covered by the CSPA?
2. Can he apply for F-2B and keep the original priority date if he is not qualified for the CSPA?

Dear reader:

Your case involves possible interpretations of the CSPA (Child Status Protection Act), and it cannot be stated at this time whether your nephew will ultimately be able to immigrate as a beneficiary of this law. Regulations have not yet been published, although both the BCIS and Department of State have set forth in a series of memos their stance on who can possibly benefit. I published an article recently on the CSPA urging a more liberal interpretation of the law than BCIS and the Department of State appear willing at this time to give. I hope that the BCIS will listen to some of the points of the article. The article can be found on our website at www.AlanLeeLaw.com. In the article, I commented that individuals who aged out during the time of processing such as in your nephew's case should be allowed to immigrate under the appropriate category using the priority date established under their parents' immigration. With a priority date in 1990, your nephew would be able to immigrate very quickly if my interpretation is adopted. I cannot, however, at this time tell you that the BCIS regulations will become liberal on this point, or whether future court challenges would unseat a restrictive interpretation.

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.