Question about derivative status

[qyz891023 0]

my step dad LPR married my mom when i was 19, a I130 was filed for my mom and me, hers was approved and mine got rejected because the marriage took place after i turned 18.

Strange thing was after we paid IV fee and submit I864 for my mom's case, NVC sent a letter asking if we were still interested in getting me a green card. I replied by saying my I130 was rejected by USCIS but they said in their system my case was still good because i could be a derivative on my mom's case. So we paid fee for me and submit document for me too, not the case reached US embassy in China. A couple of days ago I sent a letter to the embassy asking am i listed on the case, they said yes and they will arrange an interview for me and my mom together when date gets current.

Ok any idea on this? is it even worth it to go back for the interview since i might not be able to come back if rejected, am on F1 visa.

Thank you

[RICARDO4EVA2 194]

my step dad LPR married my mom when i was 19, a I130 was filed for my mom and me, hers was approved and mine got rejected because the marriage took place after i turned 18.

Strange thing was after we paid IV fee and submit I864 for my mom's case, NVC sent a letter asking if we were still interested in getting me a green card. I replied by saying my I130 was rejected by USCIS but they said in their system my case was still good because i could be a derivative on my mom's case. So we paid fee for me and submit document for me too, not the case reached US embassy in China. A couple of days ago I sent a letter to the embassy asking am i listed on the case, they said yes and they will arrange an interview for me and my mom together when date gets current.

Ok any idea on this? is it even worth it to go back for the interview since i might not be able to come back if rejected, am on F1 visa.

Thank you

the nvc is only collecting information. the decision is left at the immigration officer's call and per rules (not referenced) the marriage needs to take place before you are 18

[qyz891023 0]

so you are saying if i went for the interview, that would be a reject for sure?

[Jojo92122 1,924]

my step dad LPR married my mom when i was 19, a I130 was filed for my mom and me, hers was approved and mine got rejected because the marriage took place after i turned 18.

Strange thing was after we paid IV fee and submit I864 for my mom's case, NVC sent a letter asking if we were still interested in getting me a green card. I replied by saying my I130 was rejected by USCIS but they said in their system my case was still good because i could be a derivative on my mom's case. So we paid fee for me and submit document for me too, not the case reached US embassy in China. A couple of days ago I sent a letter to the embassy asking am i listed on the case, they said yes and they will arrange an interview for me and my mom together when date gets current.

Ok any idea on this? is it even worth it to go back for the interview since i might not be able to come back if rejected, am on F1 visa.

Thank you

There were two I-130s submitted; one where your mother was the principal beneficiary and one where you were the principal beneficiary.

The I-130 for you was rejected because your LPR stepfather did not marry your mother before you turned 18. A steppparent can only file directly for a stepchild if the relationship was established before the child's 18th birthday.

The I-130 for your mother was approved. This is where there is a "disconnect" in the immigration laws. If your stepfather was (is) a US citizen, the case for your mother would be an Immediate Relative case and you would not qualify as a derivative beneficiary. However, since your stepfather is an LPR, the case for your mother is in the F2a family preference category which does allow for derivative beneficiaries. If your CSPA age is under 21, then you qualify as a derivative beneficiary and may apply for a visa based on the I-130 filed for your mother. This "disconnect" means that an LPR petitioner is treated better than a US citizen petitioner.

You lucked out into being a derivative beneficiary.

Best of luck to you.

Edited August 29, 2011 by Jojo92122

[Jojo92122 1,924]

the nvc is only collecting information. the decision is left at the immigration officer's call and per rules (not referenced) the marriage needs to take place before you are 18

No. He qualifies as a derivative beneficiary on the I-130 for his mother if he is single and his CSPA age is under 21. In the F2a category, it doesn't matter if the marriage occurred before his 18th birthday. He is a derivative beneficiary of the principal beneficiary, his mom.

[RICARDO4EVA2 194]

No. He qualifies as a derivative beneficiary on the I-130 for his mother if he is single and his CSPA age is under 21. In the F2a category, it doesn't matter if the marriage occurred before his 18th birthday. He is a derivative beneficiary of the principal beneficiary, his mom.

Ok. Guess since the petitioner can't petition her directly the status can be gained but entry into the US should be prior to the 21st birthday.

....stand corrected....

[Jojo92122 1,924]

Ok. Guess since the petitioner can't petition her directly the status can be gained but entry into the US should be prior to the 21st birthday.

....stand corrected....

No. Wrong again. This is an immigration visa. He can enter after his 21st birthday as long as his CSPA age is 21. He would only qualify for an immigration visa if his CSPA age is under 21. His real age can be over 21.

On a K-2 visa (child of a fiancee K1 visa holder), the child must enter the US before age 21 to qualify to adjust.

You're mixing up the rules.

Edited August 29, 2011 by Jojo92122

[qyz891023 0]

Thanks Jojo92122 for your help

I have a couple of more questions to be clarified thanks

You said "He qualifies as a derivative beneficiary on the I-130 for his mother if he is single and his CSPA age is under 21"

What if they did the calculation and decide that am out of age, will there even be an interview scheduled for me or they will just interview me and reject me? Because I'm on F1 and if i go back and not able to get the green card, I dont think i can come back on F1 again. Also is there anyway for me and my mom to file I485 after the date gets current? my mom had 3 business visa before in the last 4 years.

You also said "In the F2a category, it doesn't matter if the marriage occurred before his 18th birthday. He is a derivative beneficiary of the principal beneficiary, his mom"

will I be asked to provide the rejection letter for my i130 at the interview or is it not related to this case at all?

Edited August 31, 2011 by mikeqiu

[JimVaPhuong 4,863]

Thanks Jojo92122 for your help

I have a couple of more questions to be clarified thanks

You said "He qualifies as a derivative beneficiary on the I-130 for his mother if he is single and his CSPA age is under 21"

What if they did the calculation and decide that am out of age, will there even be an interview scheduled for me or they will just interview me and reject me? Because I'm on F1 and if i go back and not able to get the green card, I dont think i can come back on F1 again. Also is there anyway for me and my mom to file I485 after the date gets current? my mom had 3 business visa before in the last 4 years.

You also said "In the F2a category, it doesn't matter if the marriage occurred before his 18th birthday. He is a derivative beneficiary of the principal beneficiary, his mom"

will I be asked to provide the rejection letter for my i130 at the interview or is it not related to this case at all?

You could file for adjustment of status after your mom comes to the US. Check box "b" in part 2 of the I-485. Just make sure your F1 status is current when you apply.

[qyz891023 0]

is it legal for her to get a new business visa and stay here just to adjust the status?

[interesting 2]

Ok. Guess since the petitioner can't petition her directly the status can be gained but entry into the US should be prior to the 21st birthday.

....stand corrected....

RIchardoooooooo.............I M IN F2A ........but...........still in control........... not OUT OF CONTROL YET

I Know it will take some time because if i become panic abt all these PD and Interview ......... it will be very hard for me and it will become more worst

.

sooooooooooo i try to keeep myself busy and try not to think too much abt it.

[JimVaPhuong 4,863]

is it legal for her to get a new business visa and stay here just to adjust the status?

She doesn't need a new visa. She's eligible for a derivative visa because her mom is getting an F2A visa. If she's already in the US, has lawful status, is eligible for a derivative visa, and a visa number is immediately available, then she can adjust status.

Read the I-485 instructions, page 1, under "Who May File Form I-485?", section 2:

2. Based on being the spouse or child (derivative) - at the time another adjustment applicant (principal) files to adjust status or at the time a person is granted permanent resident status in an immigrant category that allows derivative status for spouses and children.

A. If the spouse or child is in the United States,

the individual derivatives may file their Form I-485 with Form I-485 for the principal applicant, or file Form I-485 at anytime after the principal is approved if a visa number is available.

Her mom will be "granted permanent resident status in an immigrant category that allows derivative status for spouses and children" when she enters the US with her F2A visa. Unless they run of visa numbers in the meantime, she can file for adjustment of status. She doesn't have to return to her home country for a visa interview.

[Jojo92122 1,924]

You could file for adjustment of status after your mom comes to the US. Check box "b" in part 2 of the I-485. Just make sure your F1 status is current when you apply.

Remember that to take advantage of CSPA, you must file to adjust your status within one year of the PD becoming current. You can only adjust after your mom immigrates to the US because you are doing a follow to join as a derivative beneficiary (principal beneficiary, your mom, must enter US first before derivative beneficiaries can enter or adjust). If it takes your mom longer than a year after her PD date becomes current to immigrate to the US, you must apply for an immigration visa to take advantage of CSPA since you cannot adjust. Please be aware of the deadlines for CSPA.

[qyz891023 0]

She doesn't need a new visa. She's eligible for a derivative visa because her mom is getting an F2A visa. If she's already in the US, has lawful status, is eligible for a derivative visa, and a visa number is immediately available, then she can adjust status.

Read the I-485 instructions, page 1, under "Who May File Form I-485?", section 2:

2. Based on being the spouse or child (derivative) - at the time another adjustment applicant (principal) files to adjust status or at the time a person is granted permanent resident status in an immigrant category that allows derivative status for spouses and children.

A. If the spouse or child is in the United States,

the individual derivatives may file their Form I-485 with Form I-485 for the principal applicant, or file Form I-485 at anytime after the principal is approved if a visa number is available.

Her mom will be "granted permanent resident status in an immigrant category that allows derivative status for spouses and children" when she enters the US with her F2A visa. Unless they run of visa numbers in the meantime, she can file for adjustment of status. She doesn't have to return to her home country for a visa interview.

Oh am sorry let me clarify. By she i meant the mom, can the mom go get a business visa in China and come to US to adjust the status?

[qyz891023 0]

Remember that to take advantage of CSPA, you must file to adjust your status within one year of the PD becoming current. You can only adjust after your mom immigrates to the US because you are doing a follow to join as a derivative beneficiary (principal beneficiary, your mom, must enter US first before derivative beneficiaries can enter or adjust). If it takes your mom longer than a year after her PD date becomes current to immigrate to the US, you must apply for an immigration visa to take advantage of CSPA since you cannot adjust. Please be aware of the deadlines for CSPA.

Ok, let me just make sure i get what you are saying here.

So we have 2 options.

1. I choose to do the visa interview with my mom at the same time in China when PD becomes current

2. I choose to follow to join, and file I485 anytime within 1 year after my mom gets her visa.

How do i make the choice though? send a letter to the consulate?