Q & A July 27, 2003
Q & A 1
Dear Mr. Lee:
My parents are both U.S. citizens. In 12/1997, they applied for
me under a married child of the U.S. citizen category, as well as
for my husband and our 19-uear-old son. My husband and I now work
in the U.S., and applied for employment-based Green Cards. We submitted
I-485 to Texas Service Center in 5/2002. Due to the pending of our
immigration application through relatives, my son has to stay in
China all these years. Our family has been separated and it is excruciating.
Questions:
- My son is 25 years of age now. When the priority date for the
application through relatives becomes current, will he benefit
from “The Child protection Act”, so he would be deemed
as under 21 and his application is able to be done with ours?
Will it be a problem that we are here in the U.S. and the son
is in China?
- If the employment-based Green Card comes earlier, and the priority
date is approaching, could we give up the former and wait for
the priority date to come? Will it make an INS officer thinks
we don’t follow the rules and, therefore, give us some difficulties?
Qi
Ohio
Dear reader:
- The final regulations of the Child Status Protection Act have
not yet been written, but we understand that drafts have already
been done. It would appear from preliminary indications of the
BCIS that its interpretation of the CSPA will not reach your son's
case. As we understand at this time, the BCIS believes that the
CSPA will only reach those sons and daughters of principal aliens
whose 21st birthday came on or after August 6, 2002, and that
the only exceptions to the rule will be if the immigrant visa
petition (I-130/I-140) was pending on August 6, 2002; or if the
petition was already approved by that date, an application for
the son's or daughter's final immigration was filed on or before
August 6, 2002, and no final determination was made prior to August
6, 2002. The Department of State has taken the position that children
like your son will not be eligible because their act of aging
out before August 6, 2002, can be considered their final determination,
and that those children who never made an application for final
immigration because of aging out are also ineligible because the
CSPA requires a beneficiary to actually make an application. We
strongly believe that this is an incorrect interpretation of the
CSPA by both the BCIS and Department of State -- however readers
should be aware that this appears to be the current viewpoint
of both agencies.
- If your employment based green card application is quicker than
the petition for your parents, you can certainly immigrate through
the employment based case. This is a common practice, and there
are no negative implications that a BCIS officer would take from
your applying under the employment based rather than the family
based case. Giving up the employment based green card afterwards
when the priority date of the family based case draws near could
be done, although it would have to be done at the U.S. consulate,
and entails surrendering permanent residence before an adjudication
on your family based case can be done. It also only makes sense
if the CSPA’s final interpretation would include your son
under these circumstances.
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