Kids over 21 (Visa status)

[appu_123]

Hi All,

If the Labor is cleared for a father on H1B visa(Employment Based) and his kid on H4(dependent visa) turns 21 while father’s I-140/I-485 is not applied yet or I-140/I-485(through Employment Based) still pending, would the H4 dependent kid be still eligible to add/apply for EAD/AP along with his father when he does so?


If the child cannot apply for EAD/AP, can he still maintain his/her H4 status on turning 21 years of age?


If No, then does that mean apart from not being eligible to apply for EAD/AP(as a dependent of father on H1) if the child is studying in school on H4 and turns 21, he/she has to apply for a F1 Visa to continue his/her school here?

He/She is no longer eligible to study on H4 visa. Am I right?

Although wife is over 21, she is excluded and she can still apply for EAD/AP along with the husband on H1 applying for EAD/AP.


Your quick response/suggestions/answers would be really appreciated as there is a child turning 21 next month on H4, studying here.

Thanks,

 

[TheRealCanadian]

If the Labor is cleared for a father on H1B visa(Employment Based) and his kid on H4(dependent visa) turns 21 while father’s I-140/I-485 is not applied yet or I-140/I-485(through Employment Based) still pending, would the H4 dependent kid be still eligible to add/apply for EAD/AP along with his father when he does so?

It depends. CPSA does provide some protection for children who age out, but the big question is whether the LC processing time can be counted, or just the I-140 time. You need to see an attorney.

If the child cannot apply for EAD/AP, can he still maintain his/her H4 status on turning 21 years of age?

No.

if the child is studying in school on H4 and turns 21, he/she has to apply for a F1 Visa to continue his/her school here?

Yes.

He/She is no longer eligible to study on H4 visa. Am I right?

It's not a question of being eligible to study, it's a matter that after 21 the child is not legally present in the United States.

Although wife is over 21, she is excluded and she can still apply for EAD/AP along with the husband on H1 applying for EAD/AP.

Of course. Why wouldn't she?

 

[appu_123]

Hi TheRealCanadian,

Thanks for your answers.

I am confused by your answer on one point:
Q: He/She is no longer eligible to study on H4 visa. Am I right?
A: It's not a question of being eligible to study, it's a matter that after 21 the child is not legally present in the United States.

How should I interpret as "not legally present in the United States"
Is it a typo or did you mean after 21 he/she is not legally allowed on H4 in US?

As I did some research, the CPSA protects the kid over 21 during I-140 stage. Still will consult with an immigration lawyer.

The father has already received I-797 petition approval for H1B extension till Sep 2008. Only Labor has been cleared, so far. And the kid has applied for extension as well. Now if that extension is approved through I-797, till 2008, then the kid can study till Sep 2008. Likewise, when the father gets another H1B extension of 3 years(based on his cleared labour), the kid can file another extension for H4 and she can continue her study. Doing this she has to take care not to go outside US.
Is this possible?

The kid is studying & learning towards being a "Teacher" where only Teacher having Green Cards are preferred. So, the idea is to continue on H4 and get the GreenCard through her father on H1b.

Another question I have is: If the kid continues to get I-797 approval for H4 and studies here even after she turns 21 (and ensures she does not step outside USA), would that be illegal on her part?