If a person receives a greencard and comes to the US from the Middle East, and then applies for their over 21 son, I heard it takes about 8 years or so.. Is that about right? But their lawyer said that his specific case might be shorter (because they were waiting for a time, when their son was under 21, to get a visa for the parents as WELL as the son but he aged out), because the time that they were waiting (which was a while) could be somehow lessened from the time the son would have to wait now to get his visa NOW. Is there any truth to that? I've never heard that before..
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Applying for child over 21?
- Thread starter user1985
- Start date
Jackolantern
Registered Users (C)
Depends on the details of the situation. In some cases the process has to restart from day 1 and take 8 years, in others the over-21 son or daughter can be credited with the old priority date and the remaining wait time is reduced.
But in his case he'll have to restart with his parent filing a petition, since he was a derivative to his parent's GC process and now a new direct petition must be filed for him.
But in his case he'll have to restart with his parent filing a petition, since he was a derivative to his parent's GC process and now a new direct petition must be filed for him.
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If a person receives a greencard and comes to the US from the Middle East, and then applies for their over 21 son, I heard it takes about 8 years or so.. Is that about right? But their lawyer said that his specific case might be shorter (because they were waiting for a time, when their son was under 21, to get a visa for the parents as WELL as the son but he aged out), because the time that they were waiting (which was a while) could be somehow lessened from the time the son would have to wait now to get his visa NOW. Is there any truth to that? I've never heard that before..
The lawyer may have been referring to the Child Status Protection Act (CSPA). It is a complex statute that is very fact intensive (it counts time in days for determining retention of eligibility). The lawyer will need to do some complex calculations OR you could try to figure it out on your own by reading through the USCIS memo on CSPA (it is found at www.uscis.gov using the search function, search for CSPA)
Good Luck,
And also, I saw this article on a lawyer's website (David A. Zuckerman), which is EXACTLY their case, but I think is not accurate because I then read somewhere else that priority date retention only applies to category F2, not F1-4.. So I suppose the following would be inaccurate?:
"Another provision of the CSPA applies in cases where a child is over 21 and the wait for a green card took a very long time. The law states that if a child was under 21 when a petition was filed, but is now over 21 by the time the green card was issued, the child can retain the priority date of the original green card petition in a subsequent petition filed by the child’s parent. If the old priority date is far enough in the past, then the child’s priority date becomes current, and a green card becomes immediately available to the child.
For example, let’s assume that a U.S. citizen files a petition for his brother’s family back in 1984. The brother has a wife and two children, who were ages 4 and 5 when the petition was filed. Twenty-three years later, in 2007, the brother and wife get their green cards, but the two children, now ages 27 and 28, have “aged out” and must stay behind in the Philippines.
Now that the brother has a green card, he can file petitions for his two children, but it could take 10 years or more for their priority dates to become current. Under the CSPA, the children’s priority dates can be backdated to 1984, which is earlier than the current priority date of October 1, 1996. This makes the children immediately eligible for green cards."
"Another provision of the CSPA applies in cases where a child is over 21 and the wait for a green card took a very long time. The law states that if a child was under 21 when a petition was filed, but is now over 21 by the time the green card was issued, the child can retain the priority date of the original green card petition in a subsequent petition filed by the child’s parent. If the old priority date is far enough in the past, then the child’s priority date becomes current, and a green card becomes immediately available to the child.
For example, let’s assume that a U.S. citizen files a petition for his brother’s family back in 1984. The brother has a wife and two children, who were ages 4 and 5 when the petition was filed. Twenty-three years later, in 2007, the brother and wife get their green cards, but the two children, now ages 27 and 28, have “aged out” and must stay behind in the Philippines.
Now that the brother has a green card, he can file petitions for his two children, but it could take 10 years or more for their priority dates to become current. Under the CSPA, the children’s priority dates can be backdated to 1984, which is earlier than the current priority date of October 1, 1996. This makes the children immediately eligible for green cards."
Jackolantern
Registered Users (C)
Ok, thank you.. Do you know that case where they WOULD be credited with the old wait time?
One situation is where the son turns 21 after the petition was filed when he was below 21, but the CSPA calculation puts his adjusted age below 21. Is that a possibility here? Did the lawyer carefully apply the CSPA calculation to confirm whether he can still qualify as a derivative?
The other is where the petition is filed with the son in family 2A, and then he ages out into family 2B. In that scenario the old priority date is retained.
Re:
Hi, thanks for your reply. Unfortunately, that's not the case.. this case, we THOUGHT for years that he was under 21 with the CSPA age because we received their Notice of Action (of approval) 3.5 after the actual approval date.. But, no.. It's just really unfortunate when people have to wait 13 years (actually, 21 years because they had a previous case that basically expired when their family members moved without notifying the government), to be told "no." :: sigh ::
Hi, thanks for your reply. Unfortunately, that's not the case.. this case, we THOUGHT for years that he was under 21 with the CSPA age because we received their Notice of Action (of approval) 3.5 after the actual approval date.. But, no.. It's just really unfortunate when people have to wait 13 years (actually, 21 years because they had a previous case that basically expired when their family members moved without notifying the government), to be told "no." :: sigh ::