Help with sibling application (almost approved)

[sallymomo]

Hi everyone,
I am new to this forum but found alot of excellent information. I had a few questions.
My father applied for a green card through his sister (who is a US citizen) in January 1998 and was approved in a year. At that time, my sister (also under my dad's application) was 14 years old. Recently, my father spoke with a lawyer and found out that they should be getting their GC within a couple of months. But the lawyer says that...since my sister (who is now 24 and unmarried) will not be eligible for the GC.
Right now my parents have also applied for a GC through labor certification and they (my parents and sister) are currently in possesion of the Employment Authorization card which is being renewed annually. The lawyer said that if my parents accept the GC through his sister, then my sister will loose her Employment Authorization Card as well along with any sort of status to be here/work here legally.
Does anyone know anything about this?? How can my sister still be covered under my parents without losing her status? Please advice
Thanks so much for all your help.

 

[Triple Citizen]

The lawyer is right. Once your father gets his family based GC, his employment based AOS is no longer valid. Thus the EAD (and dependent EADs) based on that AOS is null and void too.

The lawyer said that if my parents accept the GC through his sister, then my sister will loose her Employment Authorization Card as well along with any sort of status to be here/work here legally.

 

[TheRealCanadian]

But the lawyer says that...since my sister (who is now 24 and unmarried) will not be eligible for the GC.

Is she eligible for CPSA, through either the father's FB4 or the EB petition? Ask the attorney. If he doesn't know, find a competent one.

The lawyer said that if my parents accept the GC through his sister, then my sister will loose her Employment Authorization Card as well along with any sort of status to be here/work here legally.

Unless she's covered by CPSA, she's going to have her I-485 denied and have no further basis to stay in the US.

 

[sallymomo]

I will ask my dad to look into the CSPA with the lawyer. I also forgot to mention that my sister is a Registered Nurse...but from what we have heard...sponsering a nurse is a lengthy & hard process as well.

Also...what if my dad denies this approval through his sister (in the immigration system..both my dad and his sister still have their old addresses..so he can just say he never got the notice) and just waits for labor certification to be approved?? This way my sister would not loose her status. BUt I wonder if he doesn't take the GC through his sister...then would all his other pending applications be denied as well??
ANy additional info will help.

 

[Triple Citizen]

Make sure the lawyer looks at CSPA for both avenues.
Declining his GC via the family based route will not affect his employment based route, or vice versa.

I will ask my dad to look into the CSPA with the lawyer.
BUt I wonder if he doesn't take the GC through his sister...then would all his other pending applications be denied as well?

 

[sallymomo]

Thanks S K Ghori for all your help

Ok...so from what my father says...it seems that they would minus only 1 year off her age for the CSPA in his FB4...making her 23...still not eligible for the GC.
Since his EB application is in process and has been for a while...how would she qualify for CSPA based on that?? What is the procedure and is there a link on this subject that I can read up on it.
I guess what I am asking is that say my father takes the GC next month thru his sister...then can we simulatenously file for a CSPA based on my dads EB application for my sister??SInce that EB will get cancelled once he gets his GC...would thatmake her CSPA null and void as well??

At this point I want both my parents to atleast get THEIR GCs...but they don't want to leave my sister without a status...which is what will happen if they do receive their GCs

 

[Triple Citizen]

The CSPA formula is a little complicated and to be honest I have never read it up in detail. I am sure the literature is available on the net. As TRC said, a competent lawyer should know it inside out. Keep us posted.

Since his EB application is in process and has been for a while...how would she qualify for CSPA based on that?? What is the procedure and is there a link on this subject that I can read up on it.

 

[TheRealCanadian]

Since his EB application is in process and has been for a while...how would she qualify for CSPA based on that?? What is the procedure and is there a link on this subject that I can read up on it.

CPSA makes my head hurt. I can't provide an answer that has a good chance of being right, so I'm not going to even try. You really need an attorney for this.

then can we simulatenously file for a CSPA based on my dads EB application for my sister??SInce that EB will get cancelled once he gets his GC...would thatmake her CSPA null and void as well??

You don't file for "a CPSA". CPSA is a statute that determines whether aged-out derivative beneficiaries can receive an immigrant visa number. If she qualifies for CPSA through the EB petition but not the FB4 petition, then your father needs to ensure that he withdraws the family-based petition. You/he may need to refile your I-485s.

At this point I want both my parents to atleast get THEIR GCs...but they don't want to leave my sister without a status...which is what will happen if they do receive their GCs

In the worst case, CPSA would allow your sister to claim your fathter's priority date and use it in FB2. The key is that a) she CANNOT marry, and b) she needs to leave the US and do consular processing, unless she qualifies for an H.