| Q. |
Childhood green card application
Our family migrated to USA in 2001 on the basis of application filed by my Aunt in 80s. I could not enter the USA before turning 21 because of medical reasons and education. My younger sister and mother are US citizens now. My father and younger brother will become a citizen next year
I have been in USA since 2002, on a student visa and then on an H1B visa. I am single and my father filed an I-140 for me in Dec 2003.
My questions are
- Is there any way I can use my previous immigration approval to get a green card ?
- What is the best way of using I-140 approved in 2002 to get a Green Card ASAP ? Will my application will get bumped to Family based 1 when my father becomes citizen. Can we then apply for AOS once the priority date for Family Based 1 category crosses Dec 2003.
User's Location:
Folsom, California, United States of America
Category:
Family-based Green Card
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| A. |
- Is there any way I can use my previous immigration approval to get a green card ?
There is an argument that the Child Status Protection Act permits recapture of the original priority date of your Aunt's petition. You could file AOS now with this argument, but you may wish to simply wait for the FB-1 strategy below to keep costs & hassle to a minimum, esp if H-1B continues to cover you.
- What is the best way of using I-140 approved in 2002 to get a Green Card ASAP ?
I do not know your employer, job title, the EB category nor your country of origin, so I cannot opine on I-140 stragegy.
Will my application will get bumped to Family based 1 when my father becomes citizen. YES
Can we then apply for AOS once the priority date for Family Based 1 category crosses Dec 2003. YES |
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James R. Mayock
Immigration Lawyer
Elliot & Mayock LLP
(415) 765-5111
www.emvisa.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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| Q. |
Mr. Mayock,
Thanks for the response. What is the cost and hassles involved in capturing the original priority date using CSPA. If you were to represent me, how much would the cost be and what documents would be needed from me ?
thanks
p.s. In my original message I accidentally wrote I-130 as I-140. |
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| A. |
Current state of the law is as follows:
VSC refuses to follow Matter of Garcia A79-001-587 on reinstatement of FB-4 priority dates for later FB-1, 2 and 3 petitions under CSPA.
Correspondence from VSC Counsel Thomas F. McCarthy 3 Nov 08: The BIA's interpretation of CSPA priority dates "is inconsistent with the USCIS interpretation and application of the statute and regulation [and] does not appear to be provided for under the regulation. ... Garcia is not a precedent decision and USCIS is not bound by it."
CIS has certified two cases to the Bd of Imm Appeals - Wang and Patel - which are now pending, and which are likely to be determinative.
Your best course of action may be to await the outcome of these matters before taking action on your own. We would expect you to spend a minimum of $10K plus costs [$1,500 if AOS involved]. Time to decision and outcome will probably depend upon the other pending matters.
Let us know if you would like to have a dialog, we can chat
Warm regards, Jim |
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James R. Mayock
Immigration Lawyer
Elliot & Mayock LLP
(415) 765-5111
www.emvisa.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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