Question about CSPA and aged-out child

[Me&Her 2]

So here is the case:

Brother is USC, petitioned for sister and her family (sister herself, her husband and her child).

The petition was approved on 9/9/2002, the child was 13, now the child is 26 (not married).

The original petition is now processing, just paid the $88 AOS fee, however the petition only listed the sister and her husband, the child, now 26, not married, is not listed.

Does the child still eligible for immigration?

[belinda63 3,047]

When was the petition filed, as in what is the NOA-1 date. You can subtract the time the petition was processing (the date of filing to the date of approval) from the child age. Unless it was in processing for five years unlikely the child will qualify under CSPA.

[Me&Her 2]

OK, so let's say that the child is not qualify under CSPA, can the child's parent petition for him once themselves receive their green card AND the child retain his original priority day, 9/9/2002? If so, what are the procedures and forms to fill out?

"Even if in some cases CSPA does not help a child as a derivative beneficiary under the given petition, the immigrating parents can apply for this child once they become legal PR, while retaining the original priority date of the original petition on which the child aged out. This will be beneficial to many.

Here is a link to an article that talks about this: http://www.ilw.com/a...1005-patel.shtm"

Edited August 26, 2014 by Me&Her

[Boiler 46,147]

However, as a practical matter, this result has to come from any authoritative source (an administrative precedent decision, or a federal court decision, or a regulation), so as to have any implementing mechanism in place.

I hope the BIA decision in Matter of Garcia will spur the USCIS and/or DOS to issue a definitive guidance on this issue.

[NigeriaorBust 4,087]

NO the child will have a new petition with a new date. The reference is to a bill that did NOT pass It will be about 8 years and the child must stay unmarried until parents become USC

[Boiler 46,147]

It was an interpretation that seems to have stalled. Would have upset a lot of people if it had become the norm.

[aaron2020 11,651]

So here is the case:

Brother is USC, petitioned for sister and her family (sister herself, her husband and her child).

The petition was approved on 9/9/2002, the child was 13, now the child is 26 (not married).

The original petition is now processing, just paid the $88 AOS fee, however the petition only listed the sister and her husband, the child, now 26, not married, is not listed.

Does the child still eligible for immigration?

Hi,

It takes about 12 years to petition for a sibling. If the sister's PD is around 2000 or 2001, then the child only had at best a couple of years of CSPA protection after age 21.

Since he is 26, its doubtful that his CSPA age is below 21. He has aged out and CSPA can not help him.

[aaron2020 11,651]

OK, so let's say that the child is not qualify under CSPA, can the child's parent petition for him once themselves receive their green card AND the child retain his original priority day, 9/9/2002? If so, what are the procedures and forms to fill out?

"Even if in some cases CSPA does not help a child as a derivative beneficiary under the given petition, the immigrating parents can apply for this child once they become legal PR, while retaining the original priority date of the original petition on which the child aged out. This will be beneficial to many.

Here is a link to an article that talks about this: http://www.ilw.com/a...1005-patel.shtm"

There are no procedures or forms. A child can not retain a parent's PD this way.

You quoted an old and outdated article. The US Supreme Court rejected this interpretation of CSPA in a decision in June, 2014. Here is a link to the losing attorney's website about it;http://shusterman.com/childstatusprotectionact.html

[aaron2020 11,651]

NO the child will have a new petition with a new date. The reference is to a bill that did NOT pass It will be about 8 years and the child must stay unmarried until parents become USC

There was never a bill.

It was an interpretation of CSPA advocated by families with aged out children. The US government has a different interpretation. In June, the US Supreme Court rejected the families' interpretation and sided with the US government.

Edited August 27, 2014 by aaron2020