complex situation...any advice

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Familygcprocess

Registered Users (C)
situation is: My father filled F3 petition (married daugher of US citizen) for me in 1999. Petition got approved couple of months ago. In 2004, i got greencard through my husband. However, i didn't notify NVC. Recently got a letter from montreal consulate for an appointment.

Now the question is that when my father applied for my petition, my kids were underage so they were eligible as derivative beneficiary, but in this appointment letter their name is not mentioned...so i am assuming that they are not eligible now.

I read on some post that visalaw.com or somewhere that an individual's daughter was approved even though she aged out. (http://discuss.ilw.com/eve/ubb.x/a/tpc/f/902603441/m/8976036212/p/1) What should i do? Should i just go for the interview and request counsellor to approve my kids.

Another question is....can i get a new greencard from my father's petition and apply for my kids and let them RETAIN the priority date from my father's petition....OK this may sound very very confusing..but this was also done recently on MARIA GARCIA's case where she was in similar situations as my kids (where she aged out, but she was eligible to RETAIN the priority date from her aunt's petition......http://immigration.about.com/gi/dyn...bts=0&zu=http://shusterman.com/toc-gc.html#2C

Easier terms on this website (http://immigration.about.com/od/uscasestatusprocessing/a/BIAkidsagedout.htm)

Anyone's help would be greatly appreciated.

Thanks
 
why didn't your husband apply for your kids?

yes, you can go through consular processing and get a GC through your father with your kids as derivative, IF they all didn't age out. The consular officer cannot give your children immigrant visas without you also getting and "activating" one - because they are your derivatives.

when was the petition filed? when did PD become current? when are the children's birthdays?

Read up on Child Status Protection Act.
 
LucyMO said:
why didn't your husband apply for your kids?
My husband couldn't apply because they had aged out when he+myself got the greencard

yes, you can go through consular processing and get a GC through your father with your kids as derivative, IF they all didn't age out. Again, both of my kids did age out they are 24 and 27 right now


The consular officer cannot give your children immigrant visas without you also getting and "activating" one - because they are your derivatives.So do you think if i tell the consellor officer that i already have one greencard, but i want to give that greencard up and apply for this one because my kids will be able to benefit...Would they let me???? The only reason why i think that could help me is because of Maria Garcia case.

when was the petition filed?
petition filled on feb 1999, approved aug 1999

when did PD become current?PD became current in Jan 2007, but i just got the letter. I guess they didn't send me at that time

when are the children's birthdays?When petition was filled, my son was 17 and daughter was 20

Thanks for all your help. I really, really appreciate your input and feedback

Read up on Child Status Protection Act.
Click to expand...

Thanks
 
Familygcprocess said:
Thanks
Click to expand...

If the FB3 I-130 was approved within 6 months I don't see CPSA helping your children out. They're going to need to come in under FB2B or FB1/FB3 once you naturalize, or an EB-category. (Or the DV lottery)

You should file an I-130 for them right away to lock in the priority date. You probably should have done this the day you became a Permanent Resident.
 
actually my husband did file I-130 petition on their behalf as soon as he got his greencard through employment. But do you think they can retain my father's petition priority date?? really like to know about this.

Thanks
 
Then they're out of luck, since she no longer qualifies for an immigrant visa.
Click to expand...
she does qualify for an immigrant visa, even if she is already an LPR, however, she doesn't qualify for AOS.

So do you think if i tell the consellor officer that i already have one greencard, but i want to give that greencard up and apply for this one because my kids will be able to benefit...Would they let me???? The only reason why i think that could help me is because of Maria Garcia case.
Click to expand...
it would work only if the "kids" are eligible through Child Status protection Act. It doesn't look like they are eligible, since I-130 was pending for only 6 months. Sorry. If it were pending for 7 years, your kids wouldn't age out.
 
well thats the thing...it did apply in Maria Garcia case....the reasoning behind that case is that her mom got the greencard and she didn't because she had aged out...so what Maria did was asked her mom to file an I-130 petition and as soon as I-130 was approved she was immediately able to AOS since her priority date was retained......So thats what i am thinking...get my greencard and then apply for my kids I-130 and once that I-130 is approved...they will be able to adjust status as well.
 
read about priority date portability. Somebody has written about it here not too long ago. It looks like that's what happened to Maria Garcia.
 
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yeah LUCYMO...thats what i wanna use for my kids too (exactly what you said priority date portability)...do you think it would work in my case or no? I know you're not a lawyer, but i just wanna get your advice...as you're a senior member and you may have come across someone similar to my case. What do you think???
 
LucyMO said:
read about priority date portability. Somebody has written about it here not too long ago. It looks like that's what happened to Maria Garcia.
Click to expand...

As I understand it, priority date portability only applies if you have an approved I-130 or I-140 with your name on it.

To give an example, let's say a US citizen marries an alien who has a minor child. Because this is an immediate relative petition, the child needs her own I-130. The child ages out, and cannot be sponsored by the USC step-parent. However, if the I-130 is approved, then the PD can be used later if the parent decides to sponsor the child under FB2. A derivative beneficiary might be different, since no immigrant visa petition is ever filed for such an alien.

With that said, I'm going to need to examine the decision in more detail.
 
Yes, my kids do have an I-130 applied for them. You see when my husband got his greencard through employment....I was also able to get greencard through him. Unfortunately, at that time my kids had aged out in his application as well...>So right after he got his greencard, he filed for our kids. So YES, my kids do have an I-130 filed and approved for them through their father.

All we want US immigration to do is...carry over my father's petition (my kids grandpa petition) and use that priority date (feb 1999) and apply it to my husband's I-130 petition.
 
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Familygcprocess said:
So YES, my kids do have an I-130 filed and approved for them through their father.
Click to expand...

Yes, but not from YOUR father. The point I'm trying to make is that priority date portability depends on having multiple approved immigrant visa petitions, and your children only have one.

CPSA makes my head hurt so don't take what I say as authoritative. But I will caution you that I am not particularly optimistic here.
 
yes RealCanadian...i understand your frustration...It hurts my head & everything too (lol), but unfortunately, i am in this situation so i need to understand it and make it work for my kids.

See the only reason why i am optimistic about it is because it worked for Maria Garcia. The only reason why i am posting it here and not hiring a lawyer is because I wanna get input/opinion of other people before i wash down $300-400 down the drain by doing an initial consultation.

I have researched extensively and i think Carl Shusterman is expert in these kind of cases, but he charges sooo much for initial consultation $395. Money is really not important if somebody can say YES we might be able to help you in this, but this case is soooo complicated that i am not even sure if a lawyer would want to take this case and follow along.

LucyMO, i really appreciate all your help. Do you know any good lawyers that might be able to help me. I hope you understand what i am trying to say....I dont' want to throw down $400 to hear that NO, there is nothing that can be done in your case.
 
another thing THEREALCANADIAN...i am not sure if you caught this above, but my father (my kids grandpa) did file a petition for me and my kids were derivative beneficiary in that case. So technically, they did have a petition for them from my father, but since they aged out...their name was taken off from the petition.

See another thing that i wanna share with you guys is that..even though their name was taken out...when NVC sent us the packet 3 and fee bill...they sent their form as well. They asked me to pay Immigrant fee for my kids as well......I PAID my KIDS IMMIGRANT FEE thinking that perhaps it will work. Nonetheless, now in the appointment letter, my kids name is not included. So USCIS ripped me off. (lol)
 
Familygcprocess said:
So technically, they did have a petition for them from my father, but since they aged out...their name was taken off from the petition.
Click to expand...

We're probably getting overly pedantic here, but they never did have a petition in their names; derivative beneficiaries (both EB and FB) do not have an I-140/I-130 filed for them. They may be listed as dependents on the original visa petition, but that is merely biographic data and has no legal significance. One can obtain an immigrant visa as a derivative beneficiary despite never having been listed on the immigrant visa petition.

I wouldn't quibble too much over $395 for an initial consultation. You're going to pay several times this amount if you have a case, so it might be worthwhile.
 
LucyMO or anyone...do you guys know any GOOD + least expensive lawyer. who deals with CSPA act.

REALCANADIAN: how about this...i send NVC or montreal consulate a letter stating my situation and Maria Garcia case and ask them to give me a feedback upon my visa situation..Do you think they would reply back???
 
that question is not directed to REALCANADIAN only. LucyMO and anyone else can answer it as well....the only reason why i ask this because LucyMo and RealCanadian are the only one replying to my queries.

So hope to hear from you soon.
 
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