MVP "Immigration Q & A Forum" - This Friday, August 3, 2012

July 30, 2012

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, August 3, 2012. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

MVP "Immigration Q & A Forum" - This Friday, May 27th, 2011

May 23, 2011

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, May 27th, 2011. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

I applied for a green card. What is my priority date?

July 1, 2008

No matter what avenue you take towards permanent resident status (“green card”), whether it is family-based petition, employment-based petition, or diversity visa based, the priority date of your petition determines the order of visa availability for each particular category.

Priority Dates for Family-Based Petitions

For family based petitions, the priority date is established when the I-130 form (Petition for Alien Relative) is filed with the U.S. Citizenship and Immigration Services (USCIS). If an I-130 petition is denied because of ineligibility and then later resubmitted when eligible, the priority date is established at the time of resubmission of the petition. Matter of Carbajal, 20 I&N Dec. 461 (BIA 1992).

Priority Dates for Employment-Based Petitions

For employment-based immigration petitions, the priority date is set either on the date that a labor certification is filed (EB-2 and EB-3 categories require labor certification); or for categories that do not need a labor certification (EB-1, EB-4, and EB-5) on the date that the preference petition if filed with the USCIS.

Transferring priority dates from a prior employment-based petition to a subsequent new employment based petition

Employment-based priority dates in the first three preference categories (EB-1, EB-2, and EB3) are transferable within those categories. For instance, if one files an EB-3 based labor certification and has an approved I-140 (Immigrant Petition for Alien Worker) for that category, that individual can subsequently file a labor certification in the EB-2 category and request that the priority date from the EB-3 petition be retained when filing the I-140 for the EB-2 petition. However, it is important to note that priority dates are not transferable from EB-1, EB-2, and EB-3 cases to any EB-5, EB-5, and family based petitions.

Priority dates for derivative beneficiaries (Spouses/Children)

Spouses and children of the primary beneficiary of both employment-based and family-based petitions are assigned the same priority date as the primary beneficiary as long as the marriage still exists and the children are under the age of 21 pursuant to the Child Status Protection Act. However, there are some exceptions to this rule. For instance, the child of a person who marries a U.S. Citizen must be the beneficiary of a separate petition by the parent beneficiary or, where applicable, the petitioning step-parent.

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 3 of 3

June 20, 2008

The CSPA protects Derivative children of Employment-Based preference categories

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.

Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

For instance, if you are the beneficiary of an employment-based third preference I-140 petition, as a citizen of India, with a priority date of March 1, 2005, your child would automatically have the same priority date. At the time of filing, your child was 16 years old. Once again you would have to review the State Department’s monthly Visa Bulletin to determine whether or not your priority date is current. Currently, there is a backlog for the employment-based third preference category for citizens of India. Accordingly, applicants currently have a wait of approximately seven (7) years before a visa number will become available. The State Department is currently processing cases for applicants with a priority date of November 1, 2001. Therefore, by the time the visa number will be available, your child will be 23 years old. Then, you must subtract from that age, the result of a second formula.

The second formula requires you must determine the elapsed time between the date the petition was filed, and the date that the petition was approved.

Accordingly, the I-140 petition was filed on March 1, 2005, and then approved on March 27, 2006. The computation of those two dates would be a period of approximately 1 year. This only brings your child’s age down to 22. (23 years of age – 1year = 22) Therefore, your child has “aged-out” even with the help of the CSPA. Retrogression of employment-based visa numbers has severely limited the ability of the CSPA to help the derivative children of employment-based petitions.

If the facts were different, and your child did not “age-out”, he/she would still have to apply for permanent residence within one year of the priority date being current in order to be protected under the CSPA. Otherwise, the child would “age-out” and subsequently be denied.

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 2 of 3

June 19, 2008

The CSPA protects family-based 2(A) preference children of Permanent Residents

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. The CSPA applies to children of Lawful Permanent Residents (“LPR”) if Form I-130 (Petition for Alien Relative) is filed on their behalf. To qualify under the CSPA, the child of the LPR must be “under age 21” as defined by the CSPA (and unmarried) at the moment that s/he obtains immigrant status. Specifically, if the Immigrant petition is filed by an LPR and the immigrant petition is approved and the priority date becomes current before the applicant’s “CSPA age” reaches 21, the child will not “age-out.” In order for CSPA coverage to continue, the child must apply for permanent residence within one-year of the date the priority date became current.

The calculation of the CSPA age involves two formulas. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

For instance, if you filed an I-130 petition on behalf of your child on July 22, 2005, when your child was 14 years old, and a citizen of India, you would have to review the State Department’s monthly Visa Bulletin to determine whether or not your priority date is current. Currently, there is a backlog for all family based preferences in all countries listed in the bulletin. Accordingly, applicants in the second preference (A) category who are citizens of India, currently have a wait of approximately five (5) years before a visa number will become available. The State Department is currently processing cases for applicants with a priority date of July 15, 2003. Therefore, by the time the visa number will be available, your child will be 19 years old. Then, you must subtract from that age, the result of a second formula.

Secondly, in utilizing this formula, you must determine the elapsed time between the date the petition was filed, and the date that the petition was approved.

Accordingly, the I-130 petition was filed on July 22, 2005, and then approved on July 27, 2007. The computation of those two dates would be a period of approximately 2 years. Therefore, the child’s CSPA age would be 17, and he/she may qualify for benefits under the CSPA. (19 years of age – 2 years = 17 CSPA age) However, the child must file for permanent residence within one year of the priority date being current, or they will not remain a child for purposes of the permanent residence application, and subsequently, they will be denied.

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 1 of 3

June 18, 2008

The CSPA as it relates to U.S. citizens filing petitions on behalf of their children.

The CSPA was designed to benefit children who would “age-out” because of processing delays on the part of the U.S. Citizenship and Immigration Services (USCIS) or Department of State. In enacting the CSPA, Congress had the intent to ensure that a child did not lose an immigration benefit merely because the child turned 21 while the government was processing the child’s immigration documentation. Prior guidance issued by the USCIS on August 17, 2004 and June 14, 2006 had limited eligibility of individuals to the CSPA if certain qualifying events occurred prior to August 6, 2002. However, new guidelines recently published by the USCIS remove those limitations.

The CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State, and for purposes of adjustment of status of aliens by USCIS. The Immigration and Nationality Act defines a “child” as someone who is unmarried and under the age of twenty-one. Prior to the passage of the CSPA on August 6, 2002, a child could only benefit from his “child” status if he/she remained a child right up until the date that he obtained an immigrant visa to come to the U.S.

The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence on the date of enactment to benefit from the CSPA. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. The child will not ‘age out.’ The child will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to August 6, 2002 on an application for permanent residence in which the applicant claimed to be a child.