Q & A August 24, 2003
Q & A 1
Dear Mr. Lee:
My daughter petitioned for her brother’s family (the couple
and the daughter) to immigrate to the U.S. It was done in 1997.
Later, the INS sent a notice, saying that the petition was approved,
all the documents were sent to Gongdong Consulate, and that the
due date will be notified.
Question:
1. If at the time when the interview comes, the daughter’s
age is over 21 years old (unmarried), will it affect her immigration
visa?
Zhang
California
Dear reader:
The Child Status Protection Act (signed into law on August 6, 2002)
affects all cases pending as of the day of the law's enactment where
the child was under the age of 21. Since the case is still pending,
it would be treated as a CSPA case. The issue, therefore, still
is whether the child will be able to benefit from the CSPA. While
BCIS & the Department of State have said that this would be
a CSPA case, they have not elaborated on how they would treat the
specific individual involved. Your daughter petitioned for her brother
under the F-4 category for siblings which is backlogged to August
15, 1991 under the visa bulletin for July 2003. The brother will
not immigrate for many years. If the priority date becomes current
and the child is still under 21 (or is over 21 but counted as under
21 because she is allowed additional time due to the length of visa
petition processing and the applicability of the U.S. Patriot Act),
she will undoubtedly come with the parents. However, if the time
calculations are done and the daughter is determined to be over
the age of 21 for CSPA purposes, the question is whether BCIS/DOS
will say that her lock-in date for benefits expired because it came
years after she turned 21 and she is not entitled to any, or whether
they will say she is still entitled to CSPA benefits through the
retention of the parents’ priority date even though she is
not a child for CSPA purposes. If the latter interpretation is given,
the most likely scenario would be for the parents to immigrate first
and then for the aged-out child to immigrate under the appropriate
category using the old priority date.
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