Sponsoring my Canadian daughter - permanent resident

TheRealCanadian said:
CPSA's one-year time limit only applies IIRC to ageing out protection. It does not introduce a time limit for FTJ if the applicant is under 21.
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Thanks everyone. What would you folks recommend as a general advise for increasing chances of approval.... Should I write a good cover letter detailing the situation with the family, explaining why I could not include her with my application back in 2010 (ex-wife clinging to my child support payments not willing to release the child, etc.)? Should I reference the document stating about no statutory time limit for follow-to-join dependents or it may be too much?
 
TheRealCanadian said:
CPSA's one-year time limit only applies IIRC to ageing out protection. It does not introduce a time limit for FTJ if the applicant is under 21.
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TheRealCanadian - thank you, just to clarify that there should be no limit for FTJ dependents like in my case? If not, they cannot legally deny I-485. Am I still missing something maybe?
 
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TheRealCanadian said:
CPSA's one-year time limit only applies IIRC to ageing out protection. It does not introduce a time limit for FTJ if the applicant is under 21.
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Maybe, maybe not. I haven't found clear wording either way for a derivative who is still physically under 21.
 
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LuciDreamer said:
TheRealCanadian - thank you, just to clarify that there should be no limit for FTJ dependents like in my case?
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That's exactly what he's saying. But I'm not so sure that's accurate. Consult a lawyer and get a more definitive answer one way or the other.

http://www.state.gov/documents/organization/87848.pdf
9 FAM 42.42 N12.6 Sought to Acquire LPR Status Provision
(CT:VISA-1568; 10-04-2010)
a. In family and employment-based preference, DV, and SIV cases the alien must seek to acquire LPR status within one year of visa availability. The one year requirement does not apply in IR or immediate beneficiary IB cases. The one year requirement generally means that the applicant must have submitted the completed DS-230, Part I within one year of a visa becoming available. However, if the principal applicant adjusted to LPR status in the United States and the derivative seeks a visa to follow to join, then the law requires generally that the principal has filed a Form I-824 within one year of a visa becoming available. The submission of a DS-230 Part I that covers only the principal applicant will not serve to meet the requirement for the alien child. You should be aware that because the I-824 did not have a field specifically to list derivative beneficiaries, there is no requirement that the principal applicant attempt to amend the form to reflect the names of derivative applicants. Therefore, the timely filing of the I-824 by the principal applicant in the United States will meet the CSPA requirement to seek to acquire LPR status within one year of visa availability. The filing of a Form I-485, Application to Adjust Status, by the principal alien in the United States does not satisfy the sought to acquire provision on behalf of a following to join derivative.
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Jackolantern said:
That's exactly what he's saying. But I'm not so sure that's accurate. Consult a lawyer and get a more definitive answer one way or the other.

http://www.state.gov/documents/organization/87848.pdf
Click to expand...

9 FAM 42.42 N12.6 Sought to Acquire LPR Status Provision
(CT:VISA-1568; 10-04-2010)
a. In family and employment-based preference, DV, and SIV cases the alien must seek to acquire LPR status within one year of visa availability. The one year requirement does not apply in IR or immediate beneficiary IB cases. The one year requirement generally means that the applicant must have submitted the completed DS-230, Part I within one year of a visa becoming available. However, if the principal applicant adjusted to LPR status in the United States and the derivative seeks a visa to follow to join, then the law requires generally that the principal has filed a Form I-824 within one year of a visa becoming available. The submission of a DS-230 Part I that covers only the principal applicant will not serve to meet the requirement for the alien child. You should be aware that because the I-824 did not have a field specifically to list derivative beneficiaries, there is no requirement that the principal applicant attempt to amend the form to reflect the names of derivative applicants. Therefore, the timely filing of the I-824 by the principal applicant in the United States will meet the CSPA requirement to seek to acquire LPR status within one year of visa availability. The filing of a Form I-485, Application to Adjust Status, by the principal alien in the United States does not satisfy the sought to acquire provision on behalf of a following to join derivative.

That's so confusing :(
 
You're misapplying the purpose of the one-year limit. What you're quoting regards immigrant visas via consular processing. If a DS-230 hasn't been filed within a year of the I-140/I-130/I-360/I-824 being approved, NVC will close the case. No surprise.

It's not applicable in this case - no immigrant visa petition needs to be filed because this is an FTJ case. All that is needed is an I-485 with affidavit of legal entry, proof of family relationship and proof of permanent residence of the parent. The fact that it has been over a year since the primary beneficiary was approved shouldn't make a difference, nor does the delay need to be explained. It does not affect eligibility; either the minor is the child and eligible for FTJ, or she is not. A year does not change this.

Additionally, while there may be some doubt as to eligibility, what's the worst that can happen? One's out $1000 in filing fees. There's no illegal presence or 3/10 year bars since she is a minor. Worst case an NTA is filed after the I-485 is filed, in which case one takes Voluntary Departure while one decides what to do next. USCIS isn't in the business of throwing the book at kids.
 
I suggest the following plan of action:

1. File the I-485 and see what happens.

2. Find an immigration lawyer. I expect that there is enough confusion within USCIS about this scenario that there is a significant chance of I-485 denial even if she actually is eligible. That would require responding with an MTR, and it helps if you already have already found a lawyer before the denial occurs, so can respond more quickly and easily meet the MTR deadline.

You may prefer to involve the lawyer before filing the I-485, in case they can find any clear-cut regulation or precedent that supports your daughter's eligibility in this scenario. That would give you more peace of mind about the chances of success, or alternatively you may learn that filing I-485 really will be useless and thus can avoid spending the time and money for it.

3. File the I-130 anyway, so even if the I-485 ultimately fails, some progress would have been made along the I-130 timeline.

4. Make contingency plans with a relative in Canada who will take her in if the I-485 fails. This is important because if the I-485 denial is followed by removal proceedings, it's better for her to be granted Voluntary Departure (or to leave the US before they even initiate removal proceedings) instead of forcible deportation. They won't grant Voluntary Departure to a minor if they're not convinced the minor will be going to stay with an adult in another country.
 
I spoke to the immigration attorney today which was recommended to me by some friend of mine. He said that my daughter has high chances of success and I can apply myself or go through his firm, either way is fine. There may be questions asked by USCIS. When he cited the processing fees of $1490, I wondered if that was higher because of the need to apply for I-130 as well? He said yes, I-130 was needed too along with the I-485. I asked why I-130 if that was FTJ and he said it would take too long to explain the whole process and I should trust him. It was quick free phone consultation, more like an invitation to become his client, which I don't mind unless he is hiding something from me (well, some of them do), something that is related to the success of the case.
I am currently contemplating whether I should really do it myself or pay extra and have the whole thing prepared by them.
Any thoughts, why I-130 is needed if this is the FTJ case?
Thanks.
 
LuciDreamer said:
Does that mean that the attorney is not really familiar with FTJ or something?
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When dealing with *any* professional you should expect a clear and understandable description of your situation, a plan of action and a willingness to answer your questions. If the attorney won't explain the process and just wants you to cut him a check, then I would be very, very afraid.

And yes, I am extremely curious why he feels an I-130 is required.
 
Sure, makes total sense. It was a brief free phone call, not a full consultation, I could not really demand all the benefits for free. This attorney's contact information was given to me by a friend and she knew some people who got success with him. I just don't want to share the details. But filling out Form I-130 for FTJ is kind of interesting, since online resources also state that FTJ does not need Form I-130. Looks like I need to use another opinion. Thanks again!
 
That lawyer on the phone just wants to take your money. If he really thought your daughter is clearly eligible for a FTJ I-485, the I-130 would be unnecessary ... unless you were born in India or China, which makes EB2 retogression a real threat that could delay her FTJ I-485 adjudication for years, in which case filing the I-130 as a backup plan would be sensible.

Don't expect to get a verifiably correct answer for this situation based on a free consultation. What you need from them is for them to find a clear cut statute, regulation or precedent that points to your daughter's eligibility (or lack thereof). For that you'll need a paid consultation in person. And perhaps to get them to write a cover letter citing the specific statute/regulation/precedent in support of her eligibility, which you can include with the application to help prevent a wrongful denial.
 
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Thanks Jackolantern. I just called him again and left a message asking for clarifying the details about filing Form I-130 in my case. If he does not call me back, I will go with someone else, no big deal. On the other hand, I don't really get why would he want to take over a hopeless case and apply incorrect strategy without telling me whether FTJ is a go or no-go? I think the money he would charge me is not that big, they are almost the same as the processing fees. If the case is denied, it will not work for his overall reputation, everyone knows each other in the immigrant community here.
 
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