CSPA

[renny745 1]

Ok so i became a permanent resident on october 16, i would like to sponsor my son who is at the moment 16,the problem is he will turn 21 become i become a citizen.I have spoken to a lawyer, she said to file the I-130 now and that the age will lock in.Can anyone give me some advice as how this works?

[Stephen + Elisha 92]

1. Your son will not age out. He will only become ineligible if he marries before you become a citizen.
2. If you obtained permanent residency through marriage to a US citizen, you can file for naturalization after 3 years of permanent residency.

http://www.uscis.gov/USCIS/Resources/B1en.pdf

[Hypnos 6,578]

Ages of children only "lock-in" under CPSA once you naturalise: http://www.uscis.gov...000082ca60aRCRD

However, CSPA does allow you to subtract the time that the I-130 was pending, once a visa number becomes available, to obtain their "CSPA age" even for children of permanent residents.

None of this matters though, since the current waiting time for F2A classification (minor son or daughter of a permanent resident) is just over two years. If you file now then his priority date would become current well ahead of him turning 21.

Alternatively, assuming you are married to a US citizen, your spouse could file an I-130 for your son as his step-parent. The only requirement for a step-parent sponsoring a step-child is that their relationship (i.e. your marriage) was created before they turned 18, which was done in your case since you state your son is 16. Visa numbers are always available for immediate relatives of a US citizen, so this process would take ~8 - 10 months from start to finish if you decide to pursue this route.

Edited October 30, 2012 by Hypnos

[ceadsearc 516]

Ages of children only "lock-in" under CPSA once you naturalise: http://www.uscis.gov...000082ca60aRCRD

However, CSPA does allow you to subtract the time that the I-130 was pending, once a visa number becomes available, to obtain their "CSPA age" even for children of permanent residents.

None of this matters though, since the current waiting time for F2A classification (minor son or daughter of a permanent resident) is just over two years. If you file now then his priority date would become current well ahead of him turning 21.

Alternatively, assuming you are married to a US citizen, your spouse could file an I-130 for your son as his step-parent. The only requirement for a step-parent sponsoring a step-child is that their relationship (i.e. your marriage) was created before they turned 18, which was done in your case since you state your son is 16. Visa numbers are always available for immediate relatives of a US citizen, so this process would take ~8 - 10 months from start to finish if you decide to pursue this route.

I think, based on the OP's other thread, is that her son is here illegally so if he does not have a GC by 18 years 6 months (unlikely if he is about to turn 17), he will start to accrue illegal presence time that won't be forgiven as the child of an LPR.

The stepparent idea is the best if possible but in her other thread OP mentioned a 5-year path to citizenship so she probably either didn't obtain a GC through marriage or is not still married.

I'm not really sure why OP started a new thread anyway since she asked the same question with a different subject header a couple posts down under "sponsor son."

Edited October 30, 2012 by ceadsearc

[Hypnos 6,578]

Certainly then it will hinge on whether her son is currently present in the US, how he entered, and whether the OP is currently married to a US citizen or not.

[renny745 1]

Certainly then it will hinge on whether her son is currently present in the US, how he entered, and whether the OP is currently married to a US citizen or not.

My son is present in the U.S entered legally as a visitor,i got my greencard from my daughter who is a citizen.

[Hypnos 6,578]

You should file an I-130 immediately then, and hope that his priority date becomes current before he turns 18, which is the point at which he begins to accumulate illegal presence.

Once he has illegal presence he cannot do an in-country adjustment of status without being an immediate relative of a US citizen and will need to interview at a US embassy overseas in order to obtain his immigrant visa. If he has at least six months of illegal presence it will trigger a three year ban, which he would need to file an I-601 waiver for in order to try and overcome. This would be something you would need to discuss with a lawyer, if it came to that.

Since you will seemingly naturalise after your son turns 21, this will not be a help, as he will no longer be an immediate relative and so his overstay will not be forgiven. If the timing is right and you manage to naturalise (i.e. the day you take the oath) before your son turns 21, under CSPA his age will be frozen and he should be able to adjust. The processing time for the I-130 can be subtracted from his biological age to reach his "CSPA age", as I stated above, and this could well be the break you need in order to get his CSPA age under 21. The current processing time for an I-130 is ~6 - 8 months.

Edited October 30, 2012 by Hypnos

[renny745 1]

Also the reason i am worried is because he wouldnt be a immediate relative if he ages out.

You should file an I-130 immediately then, and hope that his priority date becomes current before he turns 18, which is the point at which he begins to accumulate illegal presence.

thats what the lawyer said.

[Hypnos 6,578]

I see two pathways here:

(1) his priority date becomes current before he turns 18, he then has no illegal presence accumulated and he files for AoS (using an I-485).

(2) you file for naturalisation the second you are eligible for it (five years from the date on your green card, minus ninety days) and naturalise without issue. Even if you naturalise a handful of months after he turns 21, under CSPA the processing time for his I-130 can be subtracted and that will (hopefully) get his CSPA age under 21, at which point he files for AoS as an immediate relative under the CSPA provisions, even if his biological age is 21.

You should file the I-130 on his behalf immediately, without delay.

Edited October 31, 2012 by Hypnos

[belinda63 3,047]

Problem is a child of an LPR must be in status to adjust inside the US and this child is on an expired tourist visa.

[Hypnos 6,578]

Minors do not accumulate illegal presence until they turn 18.

If they use method (2) as i described above, any overstay would be forgiven since he would be classified as an immediate relative of a US citizen.

For (1) I'm not sure as to whether he is permitted to adjust status even if his priority date becomes current before he turns 18, despite him not accumulating any illegal presence, because he was not in a legal nonimmigrant status.

Edited October 31, 2012 by Hypnos

[JimVaPhuong 4,863]

Minors do not accumulate illegal presence until they turn 18.

If they use method (2) as i described above, any overstay would be forgiven since he would be classified as an immediate relative of a US citizen.

For (1) I'm not sure as to whether he is permitted to adjust status even if his priority date becomes current before he turns 18, despite him not accumulating any illegal presence, because he was not in a legal nonimmigrant status.

Doesn't matter if they accumulate unlawful presence. The law requires that the adjustment applicant have maintained their valid non-immigrant status. This is only overlooked for immediate relatives of US citizens. The only way he can adjust status and get a green card is if the OP becomes a US citizen before the child is 21. Since the OP just became a permanent resident this month, and since the child is already 16 years old, I don't see this happening. The child will be 21 by the time the OP is eligible to apply for US citizenship.

File the I-130 now. The child can return to his home country for the visa interview when his priority date is current. Whether or not his priority date is current, he MUST leave the US before 180 days after his 18th birthday or he'll incur a ban.

[Hypnos 6,578]

Granted, but if the I-130 takes ~6 - 8 months to process then that time can be deducted from his biological age under CSPA, which may get him under 21 for the purposes of remaining an immediate relative.

[Athena June 37]

Granted, but if the I-130 takes ~6 - 8 months to process then that time can be deducted from his biological age under CSPA, which may get him under 21 for the purposes of remaining an immediate relative.

I don't know if this helps, but an I-130 for a spouse/child of a permanent resident currently takes over a year to process.

[Boiler 46,141]

Granted, but if the I-130 takes ~6 - 8 months to process then that time can be deducted from his biological age under CSPA, which may get him under 21 for the purposes of remaining an immediate relative.

By my calculations it would need to be a lot longer than that.

Just over 4 years until he is 21.

Just under 5 years plus processing until the mother could naturalise.