Expat's Voice

Expat's Voice (http://www.expatsvoice.org/forum/index.php)
-   Permanent: Citizenship & permanant residency (http://www.expatsvoice.org/forum/forumdisplay.php?f=2)
-   -   Aging out (http://www.expatsvoice.org/forum/showthread.php?t=23)

Susie 02-25-2006 03:32 AM

Aging out
 
Hi

The Child status protection act was passed into law on 6th Aug 2002.

This law is very complex, badly written , confusing to most and does not protect all children from ageing out and being separated from their familes.

I am not an attorney but have done quite a lot of reading up on this law. Please feel free to post questions here

Regards Sue

OldinWV 02-27-2006 01:48 AM

Re: Aging out
 
Basically, the CSPA only covers "immigrant" petitions, beneficiaries of an I-130or an I-140. That in itself is extremely unfortunate for "non-immigrant" visa holders that are eligible to adjust status.

We found that the USCIS are finding many "non-immigrant" petitions deniable based on a "memo" by Johnny Williams in February of 2003. (Bear in mind this is merely an advisory memo, not law). In this memo Mr. Williams, Acting Director of Operations at the time, states that K-2's cannot benefit from the protection of the CSPA. Unfortunately, he does not say why. This has caused major confusion within the USCIS itself. They, therefore, just state as policy that K-2's are not protected from "age-out". But.............is there an argument that the reason Mr. Williams says they are not protected by the CSPA is because at the time of adjustment, so long as they have met all the requirements of entry, they don't actually need it?

It doesn't say ANYWHERE in the INA or the CFR that K-2 visa holders have to be under 21 at the time of adjustment. It merely says they have to be "minor children" (and the definition of that is now being debated) at the time they ENTER the US, that they must remain unmarried and that the K-1 visa holder marries the original petitioner within 90 days. No mention of being under 21 at the time of adjustment is made at all.

Applications for AOS under other visas specifically terminate at the age of 21 and it clearly states such in the INA. Therefore, that is what the CSPA was there to assist with.

It is also worth mentioning that there have been two cases (Padash and Akhtar) where the 9th Circuit Court of Appeals overturned the V-visa (a non-immigrant visa for immediate relatives of LPR's) "age out" restriction. This was in 2004.

Various internal memo's and cables also state that the CSPA should be interpreted "broadly", as per the instruction of the 9th Circuit Court of Appeals in the Akhtar case, stating that it was Congress' intent to re-unite families. It further rules that "where doubts are to be resolved in the favor of the alien".

It has been a long and hard struggle for us, so far, to get the USCIS to apply any of the above in our case, although it most definitely warrants it since it was THEIR fault that my son "aged-out" (if indeed he did) due to the time it took for them to schedule his AOS interview - ten months! If they had expedited his case, as they are supposed to under their own Standard Operating Procedures, we would not even be in this position now.

Good luck to all those that are struggling to be re-united with their children or trying to stop their children from being unfairly deported from the US.

Susie 02-27-2006 08:00 PM

Re: Aging out
 
Hi

Yes, there are many children still separated from their families

Even though the CSPA goes some way to help and (if passed) the dream act will help some children not all are or covered.

A lot depends on available visa numbers, backlogs, retrogression etc.,

Eventually we will have on line petitons thay we can e-mail our repective Senators, congressmen/women

Once we increase in memebrship we will be contacting all sorts of influential people !!:)

jennaamer 10-02-2006 08:09 PM

Re: Aging out
 
OK
You offered to aswer questions so here goes . . .
My father a USC is petitioning his brother (F4). He has 2 sons who would be hoping to come along as derivatives.
Priority Date is June 94 became current in Feb2006. Oldest son turned 21 May 5th 2006. Petition was pending for 6 weeks.

Interview is set overseas for the 7th of October (next week).

Is the son protected by CSPA?
I have seen the calculations done 2 way. some take the pending time at the time that the visa is available (after background, fingerprint . . ) and others at the time the priority date becomes current.

Also, they are doing consular processing will the interviewer automatically apply CSPA or does my uncle have to ask for it?
Thanks

Susie 10-03-2006 04:43 AM

Re: Aging out
 
Quote:

Originally Posted by jennaamer
OK
You offered to aswer questions so here goes . . .
My father a USC is petitioning his brother (F4). He has 2 sons who would be hoping to come along as derivatives.
Priority Date is June 94 became current in Feb2006. Oldest son turned 21 May 5th 2006. Petition was pending for 6 weeks.

Interview is set overseas for the 7th of October (next week).

Is the son protected by CSPA?
I have seen the calculations done 2 way. some take the pending time at the time that the visa is available (after background, fingerprint . . ) and others at the time the priority date becomes current.

Also, they are doing consular processing will the interviewer automatically apply CSPA or does my uncle have to ask for it?
Thanks

Hello and :welcome:

Thanks for joining and posting

The CSPA is so confusing, even immigration attornies interpret the act differently. The CSPA is also badly written and needs a leglaslative fix as not all children are protected as the law intended.

My sons CSPA case is a beneficiary of employment based and your case is different as it is a family based application

I will look into your situation and get back to you as soon as able but this is only my opinion as I am not an attorney, just a mom who has done a lot of research on this act and others

To help me further Please reply

.1 What is the country of birth for the USC BROTHER and his child ?

2. What was the receipt date, notice date and approval date for his dad's I130?

4. When did visa numbers become available

5. What is the date of birth for the child who may age out?

6. What forms (if any) have been filed for the family

jennaamer 10-03-2006 06:22 PM

Re: Aging out
 
Thank you for responding. At this point I will take any opinion. I have read your story on khannas websit and linked here using your link.
ok here goes

1-The birth country of the petitioner is Jordan is is a USC. He is petitioning his brother also from jordan. The brother has a son and a daughter that are derivatives on the petition. One of the is over 21. Also from Jordan

2- Hmm approval date is June 94 petition was only pending for 6 weeks

3- Visa number became available in Feb 2006

4- He turned 21 May 5th 2006 born in 85

5- We have filled out all the forms that have been sent to us last of which was the DS 230

They are in jordan and will have an interview at the Consular office next week. We are unsure if the officer will know to apply CSPA and what the stats are for cases from jordan.
Thank you for your time!!!!!!

Susie 10-04-2006 03:51 AM

Re: Aging out
 
Hi

I am meeting with my attorney tomorrow and will run this by him.


This is my initial thoughts, if I understand your senario correctly then your son should be protected under CSPA and should be fine. Your son was under 21 years when visa number became available and you filed DS230 for son before he was 21 years, correct?

However, I would like to add the the immigration officers do not fully understand this new law themselves so they may ask for an advisory opinion within the department of state.

All I can say is my own son should have been protected under CSPA, according to my understanding of the employment based minor child in a follow to join case. I have sought at least 8 immigration attoneys opinion and all say son is protected.

That being said the consulate asked for an advisory opinion and was denied. I have no choice by to challenge in court. To complecate matters, my husband was the petitioner for my son, husband was diagnosed terminal on 4th May 06 and died 13th May 06

I had beed advised that as petitioner died , case died with husband. But the USCI actually told me to sue on husband and sons behalf. If we win this will help so many other children who were told they aged out, and will then be able to benefit

For your info

On Wednesday 4th Oct 2006 at 5-6pm EST my immigration attorney will be on this site to answer questions. In the Chat room

Susie 10-04-2006 03:53 AM

Re: Aging out
 
Hi

Are both children NOW over 21years? What is the date of birth of the other child?

Susie 10-04-2006 04:11 AM

Re: Aging out
 
Hi

I calculate the child DOB 5th May 1985


Age for CSPA purposes =

1. DOB = 5th May 1985

2. Petiton filed (say 5th April 1994)

3. Petition approved ( June 1994 )

4. Length of time petition pending = 6 weeks

5. Date petiton became current = Feb 2006

6. Date visa became available =Feb 2006

7 Age of alien on date visa became available (# 6 minus #1 ) = 20 years and 9 months

8 Age for CSPA purposes : Age at time visa became available minus length of time petitoin pending (#7 minus #4)



So for CSPA age

20years and 9 months less time pending of 6 weeks makes age 20year and 7 and half months


I do hope I have understood your case

Please let us know how you get on

jennaamer 10-04-2006 12:37 PM

Re: Aging out
 
Thank you so much for your help! Yes you understood perfectly.

I am so sorry for your loss and hope that you are able to reunite with your son soon.

I just don't understand what the purpose of the law is if so so many people are denied the benefits. I have run across so many stories such as yours. In so many cases it seems like false hope. And how can so many individuals not be trained on how to apply it?? The burden of responsibility should not be placed on the applicant otherwise we would decide our own immigration files.:eek:

I will update you on what the consular officer says next week incase it may help someone else.
Susie Thanks again so much

jennaamer 10-04-2006 12:40 PM

Re: Aging out
 
oh . . the other is not 21 until late next year . . .close

I hope that background checks do not negate this whole process.
I was told and understand that because they are coming from the middle east and are young men that things can get delayed. We understnad and respect this process but we hope that CSPA will still apply after the fact.
We will see what they say next week

Susie 10-04-2006 02:28 PM

Re: Aging out
 
Quote:

Originally Posted by jennaamer
Thank you so much for your help! Yes you understood perfectly.

I am so sorry for your loss and hope that you are able to reunite with your son soon.

I just don't understand what the purpose of the law is if so so many people are denied the benefits. I have run across so many stories such as yours. In so many cases it seems like false hope. And how can so many individuals not be trained on how to apply it?? The burden of responsibility should not be placed on the applicant otherwise we would decide our own immigration files.:eek:

I will update you on what the consular officer says next week incase it may help someone else.
Susie Thanks again so much


Hi

Thank you for your kind comments.

You are coorect when you say so many children are loosing the benefit of this new act

There are so many factors to take into account. Must have filed before 21 years, visa number must be current, must file an immigrant petition within one year.

As I said, the immigration officers and immigration attornies scratch their heads on the way to interpret this law

I have not choice but to challenge in court not only for my sons benefit but if sucessful, this should open the door to so many other children who were also told they aged out

Please pass the word around about our site and aims as we as a large hope to be able to petition to either ammend various laws or help introduce new ones

There are many the invest a substaintial sum of money into the USA in a business. They employ many USC, LPR pay their taxes and good honest hard working people.

They come here on an E visa. There is no provision for their children to obtain LPR status. Once they reach 21 years they have to find an alternative way to remain. Most attend college or University but other children are not bright enough or parents rich enough for this to be an option.

I beleive these children should have the right to apply to become a LPR subject to good moral character. Once they have been a LPR for five years, they inturn would then be able to petiton for their parents to become a LPR

Their parents would then be able to at least retire in dignity, again subject to good moral character.


I am hoping that enough people join this site who have problems with the Child Status Protection act.

Then we may be able to file a class action law suit for ammendments !

Susie 10-04-2006 11:43 PM

Re: Aging out
 
Hi

If the CSPA applies then the childs age is locked in, so even if the rest of the processing time took 2 more years he would still not age out

I ran your case by my attoney and the good news is he agrees with me that son should be protected under CSPA

Now, lets all keep our fingers crossed to see if the consulate agrees. Please let us know how the interview goes

j0emV 10-06-2006 01:01 AM

Re: Aging out
 
Here's my situation, my father's I-140 petition was approved in February 2003 and he finally adjusted status in August 2005. I had no idea about the CSPA until last month so I luck out of immediately immigrating with him as a derivative. That I understand. What I figured I could do was have my employer file an EB3 I-140 on my behalf and argue for the retention of his original EB3 based priority date of April 30, 2001.

I had a consultation with a lawyer this morning who seems to think that I will be automatically converted to an F2B petition based on some AILA readings we looked at during the session but he'd never really looked at the CSPA and retention of priority dates in regards to an employment based petition until I got there. My thinking is that where they say converted to the "appropriate category", could be applied to me say if I had an EB3 I-140 filed on my behalf. That would make the EB3 petition an "appropriate category", appropriate meaning suitable, whereas had there been no employment petition filed, then his employment petition would automatically be converted to an F2B on my behalf. All the decisions i've seen have all been family based petition that have been granted priority date retention and those are easy because they're just moving along the same underlying category. The reasoning why they do this is because those are the only categories available to the aliens at the time of filing. But my fathers petition was indeed an employment based petition so i'm thinking what would be the case when I have an I-140 submitted for me arguing for the retention of his original priority date (which lies in the same preference category)? It wouldnt make sense that they would still convert it to an F2B petition when that wouldnt do me any good. If I were allowed to retain his priority date for my I-140 filing, then a visa number would be immediately available to me and that is the inherent reasoning for enacting the CSPA ammendments because I aged out due to no fault of my own.

So basically I want to know what everyone else thinks? Should I consult another attorney? This one seems to be apprehensive and expensive as well. I really cant afford all this but I feel that I have a good case so I want to make it happen and need the support of a good attorney.

Susie 10-06-2006 02:27 AM

Re: Aging out
 
Hi

It seems your father was the benficiary of employment based green card, correct?

In order for me to understand your case please answer

1. What is your date of birth?

2. What was the receipt date of your fathers I 140 and what was the approval date?

4. You say that your fathers I 140 was approved in Feb 2003 so did your father or yourself file any forms for you between Feb 2003 and Feb 2004 ?

4. Were you in home country and intend to follow to join family or were you living in the USA at time of fathers I 140 approval ?

5. What is your fathers and your country of birth ?

6. Have you been informed by VO that you have aged out? or received any letter from the USCIS to say you have aged out?

Please note I am not an attorney, I am just a mom who has read up on CSPA indepth.

I will recommend mine if you want details send me a pm

My attorney says if we get enough, age out children together we may be able to file a class action against USCIS/DOS ! The more peole coming forward the cheaper the class action will become !!!

Not many attorneys or immigration officers fully understand this new law. The CSPA is badly written and needs leglaslative fix.

We at expatsvoice hope to redress the shortfalls in this act and implement protecting for all children including children of E visa holders and children from countries where visa nummbers are in short supply

j0emV 10-06-2006 02:51 AM

Re: Aging out
 
Yes, my father was the primary beneficiary of an EB3 I-140 filed on his behalf by his employer. His labour certification was filed April 30, 2001.

My DOB is July 8, 1981
His I-140 receipt date is May 29, 2002 and approved on February 20, 2003.

We did nothing that I can remember between Feb 2003 and Feb 2004 because we were unaware on the CSPA benefits. My father just let his attorneys handle everything so he wasnt keeping up on developments.

At the time of his approval, I was still living in the Bahamas while he was already in the states. I moved to the states on an F-1 visa in January 2003.

We are both citizens of the Bahamas.

No, I havent taken any action yet because i'm not sure which route to take. I dont want to have him submit an I-130 for me because that would definitely port his priority date into a family-based petition. I cant submit an I-485 arguing to adjust status as a derivative since I did nothing between 2003 and 2004. I could spend $3500 on perm processing with an attorney to possibly be told that I can not retain his priority date on my own EB3 I-140 petition. I'm willing to take that risk even though its expensive. I still feel that the appropriate category in my situation would be the one for which i'm trying to apply the retained priority date to. There would be no need to convert my derivative EB3 petition to an F2B if I have a pending I-140 filed on my behalf that the retained priority date would make a visa current for me under.

Sending you a PM for the attorney info.

Edited to add: The only thing I can remember that I did do between 2003 and 2004 was entering my submission into the DV lottery. I've been doing that every year for the past 3-4 years, including this year as well. I dont know if that could be construed as criteria under "sought to acquire" lpr status within a year of visa availabilty. I guess cuz it doesnt say how, but that the alien must do some action that could be argued but I doubt it would be of any help.

Thanks for all the help!

Susie 10-06-2006 05:41 AM

Re: Aging out
 
Hi

Sorry I need to know

Your dad has adjusted status in Aug 05 so

What is the receipt date for your fathers I 485 ? what is the prority date ? and what was the approval date?

You say you were in the Bahamas at the time the I 140 was approved, correct?

Where were you living at the time your father filed for his Own I 485 ? In USA or home country ? or elsewhere

Also did your father have an immigration attorney at time of filing I 140 or
I 485? There is an important reason why I ask for this information and will explain later


Are there any other family members, mother, brother or sisters? and if so where are they and what status ?

I think you can now understand why, immigration attorneys, immigration offiicers the adviosry opinions section of the Dept of State have a hard time geting their heads around the CSPA and how to interpret

Please bear with me, I do work full time and will need to read up and get back to you asap

I will answer your pm tomorrow

Susie 10-06-2006 06:04 AM

Re: Aging out
 
What I figured I could do was have my employer file an EB3 I-140 on my behalf


Ref your quote as above

If your employer was willing , he could concurrenlty file I 140 and I 485 for you. I the I 140 was denied, this would automaticaly deny the I 485.



This would be entirely separate of the CSPA, which I am still looking into

j0emV 10-06-2006 12:19 PM

Re: Aging out
 
The receipt date for his I-485 was April 14, 2003, priority date was April 30, 2001 and approval date was August 29, 2005.

I was in the Bahamas most of the time the I-140 was pending but on January 2, 2003 I moved to the states on an F-1 and then his I-140 was approved February 20, 2003.

At the time his I-485 was approved I was still in the states, I had just graduated school July 30, 2005 and he was approved on August 29, 2005.

Yes he did have an immigration attorney at throughout his entire application process. They handled his labour certification, I-140 and I-485 applications for him because he really didnt understand the process. I have 2 brothers and 3 sisters.

Yes, there are others. His current wife adjusted status with him BUT i'm the only child that could possibly take advantage of the CSPA. All my siblings are either too old and missed out and I have a younger sister who was born in the states so she wouldnt need it. I'm the only one at the right age who could possibly benefit. One of my brothers lives in the states with my dad actually but he's 27, the other lives in the Bahamas and is 36. My youngest sister is 20 and lives in the states with my dad as well, then I have a 40 year old sister that lives in the Bahamas and a 36 year old sister that lives in the states as well (Florida). My father currently resides in Florida but I live in Chicago. I went to school in Atlanta.

From speaking with the attorney yesterday, he told me I could only file the I-485 concurrently with the I-140 if a visa number was currently available to me. The EB3 category is still retrogressed to 2002 so I would have a 4 year wait depending. But if I were allowed to retain my fathers priority date for my own I-140 then a visa number would be immediately available to me as his priority date is April 30, 2001.

I work full time too so I completely understand how hard it is to maintain that while trying to understand the complexities of immigration law when you're not even a lawyer. Everytime I see a lawyer I bring up things that they've never heard of or even thought of so that isnt very encouraging. Thanks again for all your help!

Susie 10-06-2006 11:28 PM

Re: Aging out
 
Hello

Pakiboy post this on another thread but thought is would be useful to post here also



Finally, BIA has issued a decision on case which involved 203(h)(3) involving automatic conversion and priority date retention provision.

Here are some cool links stating that.

www.ailf.org/lac/admin_interpretation_90606.pdf
http://www.cyrusmehta.com/news_cyrus.asp?news_id=1379
http://www.shusterman.com/toc-gc.html#2C
http://www.shusterman.com/siu.html






Still reading up on your case JOemv and will reply over the weekend


All times are GMT. The time now is 08:34 AM.

Powered by vBulletin® Version 3.8.4
Copyright ©2000 - 2021, Jelsoft Enterprises Ltd.
Copyright Expat's Voice © 2006 - 2020