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.
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