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Posted by
avinayak
on 01 Jul 2008 |
| Q. |
Child status protection
Here is my situation
DOB Aug. 25, 1985
Was on H4 until the age 21 and changed to F1 after that. My parents filed for Labor on 4/27/2001 and they applied for AOS on 5/21/2007 and were approved on 1/19/2008. I could not apply for AOS as I aged out. My question is
Can I apply for AOS using child protection? Am I eligible for 245 (i) grandfathering? Should I apply for family based green card through my parents. Right now I am on OPT and has gone back to college. Although I am eligible for extention of OPT of upto 29 months, should I apply for change of status to F1?
Can I apply of canadian Landed papers?
What would be the fastest route for permanent residency to me? If I file a petition for GC through parents what will be the affect on my F1 status.
Thanks
User's Location:
Niles, Ohio, United States of America
Category:
Other
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| Posted by
Andrew M. Wilson
on 02 Jul 2008 |
| A. |
Depending on how long the I-140 in your family's case was pending, you may have been able to take advantage of the Child Status Protection Act (CSPA). If the I-140 was pending for more than 9 months, you may have been eligible under the CSPA
Overview of CSPA
The CSPA amended the Immigration and Nationality Act (Act) to permit an applicant for certain immigration benefits to retain classification as a child under the Act, even if he or she has reached the age of 21.
The beneficiary’s CSPA age is determined using the formula below.
CSPA Age Formula:
Determine the age of the alien on the date that a visa number becomes available. The date that a visa becomes available is the later of (a) the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates availability of a visa for that preference category or (b) the petition approval date if a visa number is already available on the approval date. Subtract the number of days the petition was pending as described in paragraphs (B), (C) and (D) below. This is the alien beneficiary’s CSPA age. If the alien beneficiary’s CSPA age is under 21, he or she remains a child for purposes of the application for permanent residence provided the beneficiary properly applies for permanent residence, based on the subject petition, within one year of visa availability and notwithstanding the alien’s CSPA age on the date of adjudication of such application.
If the petition is approved and the priority date becomes current before the alien’s CSPA age reaches 21, then a one-year period begins during which the alien must apply for permanent residence in order for CSPA coverage to continue.
If the petition was approved and the priority date becomes current before the child’s CSPA age reaches 21, the alien must, within one year of the visa availability date, apply for adjustment of status, an immigrant visa, or be the beneficiary of an I-824 in order for the CSPA coverage to continue.
Note: An alien may benefit from the CSPA if the alien “sought to acquire” the status of an LPR within one year of visa number availability. USCIS has determined that an alien has “sought to acquire” permanent residence if he or she files an application for adjustment of status or an immigrant visa, or is the beneficiary of an I-824 within one year of the immigration petition approval date (or visa becoming available subsequent to petition approval date, whichever is later). Adjudicators are reminded that an I-824 can be concurrently filed with Form I-485 Application To Register Permanent Residence or Adjust Status. A previously filed I-824 that was denied because the principal alien's adjustment of status application had not yet been approved can serve as evidence of having “sought to acquire” LPR status. USCIS has made this determination because the CSPA language requires the alien to have “sought to acquire” LPR status subsequent to visa availability, which is a product of visa petition approval. Consequently, neither a labor certification nor a visa petition will satisfy the “sought to acquire” LPR status requirement because these actions are an integral part of the visa petition approval process and will necessarily precede visa availability.
Was no I-485 paperwork ever filed for you? Even if you aged out you still may have been able to be converted to family 2B and retain priority date.
It should first be determined if there is any way you can still take advantage of CSPA. If no, you should extend your OPT time, look at H-1B options and probably pursue permanent residency through an employment-based option.
Regards, |
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Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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| Posted by
avinayak
on 02 Jul 2008 |
| Q. |
My parten's I/140 was filed after I aged out and it was pending for only a month. No I-485 paperwork was ever filed for me. If I file for family based 2B, will that have any adverse affect on my F1?
Thanks |
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| Posted by
Andrew M. Wilson
on 02 Jul 2008 |
| A. |
Oh, if I-140 was filed after you turned 21 and in addition it was only pending for 1 month it does not sound like you would qualify under CSPA.
I do not think an I-130 filed on your behalf under family 2B would affect your application to extend your OPT status. There is a long wait for Family 2B, perhaps it will convert to Family 1st if your parent(s) naturalize. In any event, you should focus on OPT, H-1B and permanent options through employment-based scenarios.
Regards, |
| |
Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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