Q & A August 10, 2003
Q & A 1
Dear Mr. Lee:
My sister petitioned for my wife, our daughter and me to immigrate
in 1990, and the approval date was 4/18/1990.
The National Visa Center sent us three forms along with some documents
on 3/26/2001, and informed us that our case was approved, and that
we need to prepare some documents. According to the INS’ requirement,
we sent the forms and asked our relative in the U.S. to pay the
visa fees of $780 ($260 per person.) Besides, my sister provided
the affidavit of support for three of us on 7/5/2001.
We finally received a letter in 6/2002, notifying us to go to the
American consulate in Guangzhou for our visa processing on 7/30/2002.
To our surprise, the consulate didn’t grant my daughter the
visa for she had aged out. She, as a result, was left alone in China
and couldn’t go to the U.S. with us. It caused excruciating
pain in our hearts.
Questions:
1. How is “the Child Protection Act” interpreted and
carried out?
2. Could my daughter benefit from it? Or are there some other ways
to do?
Mr. Jiao
New York
Dear reader:
- Final regulations have not yet been issued for the CSPA although
there have been 5 memos by the BCIS and Department of State giving
their interpretations of the Act as they apply to family based
cases. According to their interpretations, where the petition
was approved and the child aged out prior to August 6, 2002, the
enactment date of CSPA, the child would not benefit under the
CSPA. However, the Department of State has recently stated in
its fourth memo on the CSPA that the CSPA could apply in circumstances
where a case was denied between August 6, 2001 to August 5, 2002
and the child had applied for an immigrant visa on the basis that
a "final determination" had been not yet been made on
the application as the State Department allows immigrant visa
applicants one year to rebut the basis of denial. But the exception
would probably be fairly limited as the Department of State has
also said in prior interpretations that ageing out could be seen
as a final determination.
- The BCIS/DOS interpretations are subject to challenge as they
apply to derivative beneficiaries, but as it appears that there
was no case pending for you on August 6, 2002, (unless you were
not given immigrant visas on 7/30/02, but were given such on or
after August 6, 2002), your daughter would not appear to be able
to benefit under the CSPA. You may explore other options for your
daughter including petitioning for her as the unmarried daughter
of a permanent resident (a long process), having an organization
apply for an H-1B working visa for her if she has a baccalaureate
degree in a specific professional occupation required by an organization,
or having an organization apply for a labor certification on her
behalf if she has skills which are in short supply in the U.S.
and needed by the organization.
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