Child under 21

[jasandalan 0]

Hi all,

I'm asking this on behalf of my cousin. He's 20 year old and has been studying in the States since 2007 with F1 visa. His parents are from Vietnam. More than a decade ago, the parents applied to come to the US with the sponsor being the mother's sister. The family just got notice that their application is being finalized and they are getting ready to move here.

The question is that, would my cousin, being a child under 21 years of age, be able to change his status from F1 to green card since his parents' application got approved?

Does he need to go through AOS?

Thank you for your helps!

Jasmine

[JimVaPhuong 4,863]

Hi all,

I'm asking this on behalf of my cousin. He's 20 year old and has been studying in the States since 2007 with F1 visa. His parents are from Vietnam. More than a decade ago, the parents applied to come to the US with the sponsor being the mother's sister. The family just got notice that their application is being finalized and they are getting ready to move here.

The question is that, would my cousin, being a child under 21 years of age, be able to change his status from F1 to green card since his parents' application got approved?

Does he need to go through AOS?

Thank you for your helps!

Jasmine

He should be able to adjust status IF his parents get their visas and come to the US, and he submits his AOS application BEFORE he's 21 years old, AND his non-immigrant status is still current when he applies.

Because he is a derivative of the primary beneficiary he cannot apply for any immigration benefit until the primary beneficiary applies for or receives the same benefit. The primary beneficiary is his mom, and the immigration benefit is admission to immigrant status. His mom will receive this benefit when she enters the US with her immigrant visa.

This scenario is not typical, and depends on many criteria in INA section 245 being complied with. Some of these criteria are things which most people who adjust status under INA 245 are not subject to. There are several factors which sets this apart from a run-of-the-mill adjustment of status. He's a derivative of the immigrant visa petition and not the primary beneficiary, which means he can't get any benefit until the primary beneficiary get's the same benefit - this is something he'll have to prove has been complied with. It's a family preference category and not an immediate relative category, which means his non-immigrant status must be current - again, something he'll have to prove has been complied with. Also, as a family preference rather than immediate relative, he's not exempt from the illegal employment exclusion - he can't prove he didn't work illegally, but it may take USCIS some time to verify that he didn't. Like any family based immigrant, he'll need an affidavit of support from the sponsor who petitioned for the primary beneficiary.

What this adds up to is an impressive list of opportunities for USCIS to screw it up. It would be a lot less complicated, and less prone to a bureaucratic screw up, if he returned to Vietnam and got an immigrant visa at the same time his mom did. It would also cost a lot less than adjustment of status. He MUST get his DS-230 submitted before he's 21 in order preserve his derivative status, and he can't submit before his mom does, so they need to get moving.

[jasandalan 0]

Thank you so much JimvaPhuong, your answer is super helpful :]