Q & A April 27, 2003
Q & A 1 2
To Whom It May Concern:
I am a U.S. citizen, and petitioned for my married brother and
his family on 1/20/1999. I have received the approval notice, on
which it shown the receipt date was 3/18/1999 and the notice date
was 6/17/1999.
Questions:
- When is my brother’s priority date according to it?
- Was my brother supposed to receive some kind of correspondence
from the NVC at the same time when I got the approval notice?
If he didn’t receive any, does it mean the letter was lost? Will
it affect the application? Or is he supposed to get the letter
from the NVC when his priority date is due?
- From a law column answer of World Journal Sunday paper #974,
I learned that “Within one year of an I-130 approval, a DS-230
must be filed, or the Child Status Protection Act” won’t be applicable.”
If so, when is the best time for us to file a DS-230?
- My brother had another son in November 2001. When is the last
possible time to add the child into the application? What form(s)
should we apply for? What is the procedure?
Ms. Pei
Michigan
Dear reader:
- Your brother's priority date is neither of the dates that you
have pointed out. An I-797 approval notice for family based cases
has three dates -- a receipt date, the approval date, and priority
date. The priority day usually predates the receipt date by a
few days to even one or two months depending upon the backlog
in receiving applications with the BCIS cashiers.
- From the date that the BCIS approves an I-130 petition for an
individual who will be consular processing for immigration, the
NVC will usually send an acknowledgement letter that it has received
the case from the BCIS within one-three months. On the notice
is the number which is to be used for consular processing. I suggest
that you or your attorney check with the National Visa Center
if the letter has not been received by this time to ensure that
the NVC has received your brother's case, and to obtain the case
number for consular processing. This will be the only correspondence
from the NVC until the priority date is close to becoming current,
at which time it will send further paperwork for your brother's
immigration.
- According to the Child Status Protection Act, an individual
who is a beneficiary of that Act must take action within one year
of the date that the visa number becomes available. A visa number
is considered to become available when the petition has been approved
and the priority date is current, whichever comes later. When
that occurs, the Department of State has taken the position that
the derivative beneficiary must file the DS-230 part 1 form within
one year if the principal alien was visa processed overseas for
immigration. If the principal alien adjusted status in the U.S.,
the Department of State recognizes that the filing of an I-824
follow to join petition with the BCIS within the one-year period
of time would suffice to preserve eligibility under the CSPA.
If the child is in the United States, he or she would have to
file an I-485 application with the BCIS within the one-year period
of time.
- The son can be added onto the brother's case at any time before
he immigrates to the United States. When he receives any correspondence
from the NVC, he can notify that agency of the birth of his child
and ask that the child be added onto his case for processing.
Your brother should enclose a copy of the child's proof of birth.
Dear Mr. Lee:
My husband, a Green Card holder, petitioned for me in August 1996.
The priority date is September 9, 1996. I went to the interview
in Guangdong Consulate on 9/6/2002, and at the time my son was 11
days short to be 21 years old. It wasn’t, however, until 3 months
and 28 days after the visa permitted sheet was received and the
fees for both of us were paid, that we got the notice for visa pick
up in the consulate. To my surprise, I only received mine, but not
my son’s, and was told that my son was older than the eligible age,
so was not permitted to get the visa.
Questions:
- What can I do in this case? Why did the consulate deny my son’s
case after receiving the visa permitted sheet?
- My son’s DOB is 9/17/1981. Is he still eligible for applying
under the Child Protection Act? How can we petition for him?
- Can my son use my priority date? If so, when can he come to
the U.S.?
Mrs. Yuan
Las Vegas
Dear reader:
- It appears from the letter that your son is qualified for the
benefits of the Child Status Protection Act (CSPA), and that he
is to be considered a child for purposes of follow to join immigration.
I would assume that the delay in resolving your son's case is
most likely because the consulate has not received sufficient
instructions on how to deal with the processing of children who
are eligible for the CSPA's benefits.
- Your son appears to be clearly eligible for the benefits of
the CSPA. It would not appear that you would have to petition
for him on a separate petition.
- Your son is able to use your priority date, and he should be
able to come to the U.S. as soon as procedures are settled on
the implementation of the CSPA at the consulates.
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