Question about my situation.

W

woof_326

Registered Users (C)
HI everyone.

HI,

My grandpa(US citizen) has been filed a I-130 for my father (included my mom, brother and me). When got an I-130 approval in nov, 2006. But now i'm over 21, and I'm no sure if I'm over age or not. Recently, my grandpa in really serious illness, he will be leaving us in couple months. I'm F-1 student (graduating in may 2008) in US, and I was helping my parent to get tourist VISA to come to US in order to see me grandpa. However, the US embassy rejected their application. Is there anyways can grand a tourist VISA, and also, if my grandpa pass away, will my father's case valid and keep it on the queue?? Please give me a advise. many thanks!!!
 
woof_326 said:
HI everyone.

HI,

My grandpa(US citizen) has been filed a I-130 for my father (included my mom, brother and me). When got an I-130 approval in nov, 2006. But now i'm over 21, and I'm no sure if I'm over age or not. Recently, my grandpa in really serious illness, he will be leaving us in couple months. I'm F-1 student (graduating in may 2008) in US, and I was helping my parent to get tourist VISA to come to US in order to see me grandpa. However, the US embassy rejected their application. Is there anyways can grand a tourist VISA, and also, if my grandpa pass away, will my father's case valid and keep it on the queue?? Please give me a advise. many thanks!!!
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Hi:

Sorry to hear that.

1. I am not so sure about your age problem. If you are filed your case before 21, as I remember it's valid. Moderator, would you mind to comment on this one?

2. Do you have other relatives live in this country? If you have, you can find someone to be a substitute sponsor.

A substitute sponsor is a sponsor who is completing a Form I-864 on behalf of an intending immigrant whose original I-130 petitioner has died after the Form I-130 was approved, but before the intending immigrant obtained permanent residence.

3. Ask your grandpa doctor writes you a letter of your grandpa situation. And call up your state senator right away. They will help you out.

4. As long as you have a substitute sponsor, your father case is safe.

Can you find a lawyer to get a consultation right away? Since you are already in US, may be you can file AOS now.
 
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I'm sorry to hear about your grandpa's situation. Getting a visitor visa for your dad will be very difficult since an immigrant petition is pending for him, therefore the USCIS presumes he has immigrant intent and would not be eligible for a nonimmigrant visa. Your father will have to prove he has closer ties to his home country (job, owns property, has relative there, ...) and that he does not intend to immigrate at this visit but rather return to his home country. If you're not eligible based on your age you might be better off going the EB route, since you're already in the US and well on your way to have employment immigration as an alternative option.

[Edited for correctness after I saw LucyMo's comment below. Thanks for the observation that the OP's dad is not an immediate relative, now the derivative eligibility in the I-130 instructions also makes sense to me!]
 
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an adult son of a US citizen is not an immediate relative, and therefore, can have derivatives.
 
Eleanor said:
I am not so sure about your age problem. If you are filed your case before 21, as I remember it's valid. Moderator, would you mind to comment on this one?
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CPSA allows one to subtract the days the I-130/I-140 was pending from one's current age, and if the adjusted age is below 21, one can still be eligible for a visa. If the I-130 is approved quickly and much of the time is spent waiting for the PD to become current, one is out of luck.
 
woof_326, what's your dad's priority date?

OK, so based on LucyMO's excellent correction of my mistake that the OP's father is an immediate relative (please forgive me, I'm still learning this too), I would assume the OP's father is in F-3 category (married son of US citizen) which currently has visa numbers available for petitions filed by April 8, 2000 (except Mexico and Philippines).

If the OP ages out, would he automatically fall into F-2B?
 
austriacus said:
If the OP ages out, would he automatically fall into F-2B?
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I don't think so. If the OP was the direct beneficiary of a petition in his name, it might be possible to change categories, however in this instance he is only (potentially) eligible for derived benefit by virtue of the petition submitted for his father.
 
Instead of going for a B2 visa for your father, try applying for a temporary AP for emergency reasons. Your grandpa's physician and your congressmen should be able to help somewhat.
 
Thank you so much:)! for everyone advices. I guess the priority date is Oct 11, 2003 [Married son or daughter of US citizen, 201(a)(3)], and we got the approval letter on Nov 1 2005. When we submitted the I-130 I was under 21, but we got the approval after 21. They already showed a doctor letter to explain my grandpa medical issue, when my parent met with the US Embassy for tourist VISA in the Oct. However, they were rejected by intention of staying in USA. As I mentioned since my dad is a immigrate petition. So do you guys think he can re-apply the tourist VISA again in 3 months? or better re-apply it after 6 months? Also will my brother have a difficult time to get the F-1, he is planing to finish the College in US.
 
boatbod said:
I don't think so. If the OP was the direct beneficiary of a petition in his name, it might be possible to change categories, however in this instance he is only (potentially) eligible for derived benefit by virtue of the petition submitted for his father.
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Well, I'm by no means an expert on this (as evidenced by my prior mistake thinking the OP's dad was his grandpa's immediate relative), however, if you read e.g. this it states:

After Congress passed CSPA, unmarried adult children of immigrants have been allowed to come to the United States under the visa petition filed for their parents, even if they turned twenty-one years old before immigrant visas have become available. Under section 3 of CSPA, unmarried adult children of immigrants who are derivative beneficiaries of petitions filed for their parents will be placed into a different immigrant visa preference category when they turn twenty-one years old. However, they can “retain” the priority date, or filing date, of their parents’ petition, and can apply for immigrant visas under their new immigrant visa category, based upon their parents’ priority date.

So it would appear to me that the OP may be able to retain his dad's priority date.

Then I've also read this, which has the following example:

The Labor Certification application that was submitted on John's behalf on January 1, 2000 was approved on December 31, 2000. His employer subsequently submits an I-140 (EB-2) immigration petition on John's behalf on January 1, 2002. At that time, John's son, Junior, is 20 years and 7 months old. John's I-140 petition is pending for six months and is finally approved on July 1, 2002, when Junior is 21 years and 7 months old. Visa numbers for EB-2 are available for John on July 1, 2002. Under the CSPA, Junior’s age is fixed as of the date that a visa number becomes available minus the number of days that the I-140 was pending. Because John's I-140 was pending for six months, these six months must be subtracted from Junior's age at the time the visa number became available (July 1, 2002). Subtracting six months from Junior's age of 21 years, 7 months on July 1, 2002, Junior's age is fixed at 21 years and 1 month. Even with the Child Status Protection Act, Junior still ages out and may not adjust his status at this time. However, he will automatically be reclassified to an appropriate category, family-based 2B, and retain his father's original priority date, January 1, 2000, which is the date John's employer filed John's Labor Certification application.

Now, in the above example, I think there's a math error (Junior seems to have aged 1 year in 6 months?) but nonetheless, let's assume Junior has aged out, but I think the key is that the employer did not directly petition for Junior (nor was the employer eligible to petition for Junior), just like grandpa can't petiton for the OP. But for whatever reason, it states CSPA allows Junior to keep the PD and fall into F-2B category, even though it appears to me completely unrelated to the original petition (I assume it's based on Junior being an unmarried son over 21 of his permanent resident dad?).
 
woof_326 said:
Thank you so much:)! for everyone advices. I guess the priority date is Oct 11, 2003 [Married son or daughter of US citizen, 201(a)(3)], and we got the approval letter on Nov 1 2005. When we submitted the I-130 I was under 21, but we got the approval after 21. They already showed a doctor letter to explain my grandpa medical issue, when my parent met with the US Embassy for tourist VISA in the Oct. However, they were rejected by intention of staying in USA. As I mentioned since my dad is a immigrate petition. So do you guys think he can re-apply the tourist VISA again in 3 months? or better re-apply it after 6 months? Also will my brother have a difficult time to get the F-1, he is planing to finish the College in US.
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Alright so if I do the calculation correctly, the I-130 was pending for approx. 2 years, so you can subtract approx. 2 years from your age at the time a visa number becomes available for your dad in determining if you age out. However, given that we're now in Dec 2007, you would have already aged out even if a visa number was immediate available (which it's not, looks like about 3 years away).

In your original post you said it was approved Nov 2006, not sure which one is correct, let's re-examine what would happen in that case. You could subtract 3 years from your age. You'd now be older than 22, need to be under approx. 24 when an immigrant number becomes available, still looks likely you'd age out under this scenario also if you have to wait approx. 3 years for an immigrant number to become available.

I don't think the timing of the tourist visa app matters that much but it will be very important for your family to provide strong evidence of their continued ties to their home country and that they do not intend to immigrate at this specific visit. A visa number for them is likely not even available for several years.

Yes, your brother may have difficulties getting an F-1, especially if he's still under 21, same difficulty as getting a tourist visa (need nonimmigrant intent). I'm assuming he'd have difficulties proving the ties to his home country, since he probably doesn't have a job offer waiting, or owns significant assets in his country, and the rest of the family may be immigrating to the US within a couple of years so no strong family ties, and during the duration of his studies it's quite likely the immigrant number will become available for his (your) dad and him as a derivative, so chances are he might be immigrating while he's on F-1 in the US.

But, someone correct me if I interpreted it incorrectly.
 
Hi austriacus, thanks for all the information you provided. uM, it seems like once the VISA number is ready,I will be over age, as I'm turning 24 in a months. So will I be eligible to apply for H-1B or O-1? Because I will graduate in May 2008.
 
woof 326,

yes, definitely H-1B is an option (dual intent), O-1 I'm not sure about, apparently it doesn't specifically require nonimmigrant intent but also is not defined with dual intent in the law. Anyway, never met anyone who applied for or received an O-1 visa. Wish I had an extraordinary ability!

Since you're 24, can I assume you'll have a US master's degree? Then you would fall in a special exempt category where it'll be a little easier to fall under the cap. Easier meaning you'll have several days, maybe weeks, from when they start accepting applications to fall under the cap, as opposed to the first day of processing. Or, you can seek to work for a H-1B cap-exempt employer (Institutions of higher education, certain non-profit research institutions affiliated with institutions of higher education, and government research institutions.).
 
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