Brother/sister's Children Turning Age 21

C

COLABA

Registered Users (C)
My Brother/Sister's are beneficiaries of my immigration visa petition. By current indication the visa numbers will become current in 2003. The problem is that 2 of the children will turn 21 around the same time.

The question I have for the forum is does the child have to be under 21 when the visa number becomes current or does the child have to be under 21 when the visa is issued. Also, does the child have to be under 21 when he/she enters USA.

This one is going to be a close call and it will affect two of the children by 7-8 years if they do not get the visa with the parents. They would obviously like to plan for it accordingly.

I would appreciate any link to a legal citation or official governent site stating the regulations in this case.


Thanks All
 
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Hi..
I'm in a smiliar situation. I posted a message
titled "Child Staus Protection Act". In my situation, my brothers will be getting a visa
in Oct. But all my nephews are over 21 (22,23,24)
. I contacted a lawyer and asked him if they could be benifitted since at the time of applications they were 10,11,12 years old. After
checking with some AILA lawyers, he mentioned it
only applies to the Children of Green Card Holders
and US citizens. But he also mentioned that law is not clear and AILA have asked for explanation for the cases like mine and yours.
Also, about turning 21, means you've to enter in the US before he/she reaches 21. I read some info. on this at http://shusterman.com... FAQ
for Child Status Protection Act. describes simliar
case for a daughter of US citizen.
If I hear anything different from my lawyer I'll let you know. Is not it ludicrous that you wait for
12 years for your loved ones to come here and this
STUPID law stops some of them from coming here just because they turned 21 due to slow INS processing?
 
Hi parvardigar
Any news about age-out protection? Is it applicable for F4 category children. I have sent this question to usvisanews.com(wednesday question). Check on wednesday at www.usvisanews.com wednesday question to see if there is reply. Try the chat on Murthy.com on Monday. I shall also try.
 
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Dear Parvardigar & Rana 1986:

I have done some checking and it seems like that the Child Status Protection Act will protect children of beneficiaries of immigrant visa petitions if their cases had not been decided on by enactment date of the law ( August 6, 2002).

The "derivative" children are covered for family, employment, diversity and refugee visa category petitions.

I am basing this on the basis of the actual reading of the law. The enacted law is called public Law 107-208. A copy can be found ion the INS web sites or other government web sites.

Of course, the devil is in the details. For those border line scenarios, we will have to wait for the INS regulations .

If you find out any thing additional, please contact me at MSP2000@PRODIGY.NET

Thanks
 
Hi Colaba,
I and my lawyer read the law line-by-line. I exactly felt the same way you did, but my lawyer and his lawyer friends felt otherwise. As you can see from my email how eager I was as my brothers would be getting a visa call soon, but unfortunately INS has not given more details though my lawyer and AILA have asked for an explanation in the situation like mine and yours.

Regards,
 
Dear Parvardigar:

I would like to understand where your attorney differs with you. You have to read the new law in the context of Section 203 & 204 of the Immigration & Nationality Act. I had downloaded fresh copies of Section 203 & 204 so I could insert the amendments in those sections or get the right context.

I do not believe any one is doubting the intent of the law is to help out aged out beneficiaries. the question is how extensive the relief actually is. We all agree on the relief to the beneficary if the petitioner is a USC or a PR or a refugee.

The rest of the beneficiaries who are covered are "derivative children" in subsection (d). Such children are also protected in the case of an employment visa petition, diversity immigrants as well the family preference petition.

The key elements being age is "REDUCED by the number of days the applicable petition described in paragraph (2) was pending"

The relevant petition being described (2)(B) "with respect to an alien child , who is a derivative beneficiary under subsection (d), a petition filed under Section 204 for classification of alien's parent under subsection (a), (b) or (c)" ( that is of Section 203 that is being amended )

If you see subsecion (d) in Section 203 of the Immigration and Natioanlity Act, it goes in detail about being a derivative beneficiary.

Subsection (a) refers to Family Preference, (b) refers to Employment based immigrants and (c) refers to Diversity immigrants.

Subsection (d) applies to all derivative children of beneficiaries under all three categories.

It says clearly under (d) "that a spouse or child shall be entitles to the same status as the beneficiary if accompanying or following to join the spouse or parent."

Remember the Age issue as been effectively frozen by reducing th enumber of years the petition has been pending.

The only issue that is open to interpretation in my opinion is "pending". Some people will say that pending means since the petition filing date. Some may say since the approval date. I believe that the priority date should govern that. However, INS regulations shoudl settle this

BTW, I read on of the other forums that an embassy changed the appointments of one of the parents to August 13th because, they did not want to jeopardize his child's chances. That is why I believe that people whose parent's recieved the visa prior to August 6, 2002 either will be aged out or will need expert legal help

Let me know if you agree or if other members of the board agree!
 
Hi Colaba,
I agree with you as I was arguing on the derivative(section d) with my lawyer. But he
kept telling me that law protects immediate relatives but for the children it's not clear
and needs more explanation.
I had also called National Visa Center and asked them about the new law. They had no knowledge about it(I was not surprised!) and asked
me go to local INS office(Newark,NJ) and ask them if my nephews could come with my brother. I did not bother as I know that they would be in the same boat as National Visa Center. Please call National Visa Center(603-334-0700...you will need a case no. for your brother/sister) and ask them if they tell you anything differently.

Regards,
 
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