Options if CSPA doesn't apply

[f10295 0]

Hello,

My mother (U.S. Citizen) had applied for her sister and her family on 7/16/02.

The visa petition was approved on 10/13/09.

The visa became available on 5/1/15.

The sister in question had 3 children who were included on the initial application. All 3 remained unmarried, but only the youngest child was eligible under the CSPA (DOB 11/4/91).

The other two have a DOB of of 6/17/83 and 9/23/84, respectively. They aged out even after taking into account the 7 years that the case was awaiting approval.


My aunt, uncle, and their youngest son arrived in the US last month. My question is regarding the two older children whom were listed on the initial application and are unmarried.


What options do we have in terms of applying for them? I searched through the forum and some threads are stating that the original priority date can be retained, while others say that new one has to be assigned. Is there a thread or an article that would summarize what options we have? If not, would someone please explain them?

Thank you.

[aleful 1,905]

hi

new petition, new priority date,

as long as they remain unmarried until your parents become USC, they can file for them

[f10295 0]

hi

new petition, new priority date,

as long as they remain unmarried until your parents become USC, they can file for them

Thank you for the quick reply! Their* parents I assume you mean.

Would the new petition be the F2B category? If so, does around 7 years seem like a good estimate?

[newacct 688]

Thank you for the quick reply! Their* parents I assume you mean.

Would the new petition be the F2B category? If so, does around 7 years seem like a good estimate?

yes and yes

[aleful 1,905]

hi

sorry, their parents and you are correct

[f10295 0]

yes and yes

hi

sorry, their parents and you are correct

If they apply today as green card holders for the F2B category, and the children remain unmarried, do they automatically move to F1 and retain the same priority date once the parents become citizens after 5 years? Or will a fresh application need to be applied with a new priority date?

Also, if they do apply as green card holders for their children under the F2B category and the children do get married, does the application cease and a new F3 application need to be applied with a new priority date once the parents become citizens? Or would the F3 application somehow retain the F2B priority date?

[aleful 1,905]

If they apply today as green card holders for the F2B category, and the children remain unmarried, do they automatically move to F1 and retain the same priority date once the parents become citizens after 5 years? Or will a fresh application need to be applied with a new priority date?

Also, if they do apply as green card holders for their children under the F2B category and the children do get married, does the application cease and a new F3 application need to be applied with a new priority date once the parents become citizens? Or would the F3 application somehow retain the F2B priority date?

hi

yes for the first question, once the parent becomes a USC. they change category but they retain the priority date

residents can't petition for married children, only USC can file for married children. if they marry before the petitioner becomes a USC, the petition becomes voided, and their parent must file a new petition, with a new priority date.

always when there Is a new petition, a new priority date will be close to the receiving date

Edited May 4, 2016 by aleful

[aaron2020 11,651]

If they apply today as green card holders for the F2B category, and the children remain unmarried, do they automatically move to F1 and retain the same priority date once the parents become citizens after 5 years? Or will a fresh application need to be applied with a new priority date? When the petitioning parent becomes a US citizen, the case automatically converts from the F2b category to the F1 category and the PD is retained. A new petition is not needed.

Also, if they do apply as green card holders for their children under the F2B category and the children do get married, does the application cease and a new F3 application need to be applied with a new priority date once the parents become citizens? An LPR can never had a petition for a married child. If a child gets marry before the petitioning parent becomes a USC, the case is over. A new petition with a new priority date would be needed and can only be filed after the parent becomes a USC. Or would the F3 application somehow retain the F2B priority date? If a child gets marry after the petitioning parent becomes a USC, then the case converts from the F2b category to the F3 category and the PD is retained.

[aaron2020 11,651]

Hello,

My mother (U.S. Citizen) had applied for her sister and her family on 7/16/02.

The visa petition was approved on 10/13/09.

The visa became available on 5/1/15.

The sister in question had 3 children who were included on the initial application. All 3 remained unmarried, but only the youngest child was eligible under the CSPA (DOB 11/4/91).

The other two have a DOB of of 6/17/83 and 9/23/84, respectively. They aged out even after taking into account the 7 years that the case was awaiting approval.

My aunt, uncle, and their youngest son arrived in the US last month. My question is regarding the two older children whom were listed on the initial application and are unmarried.

What options do we have in terms of applying for them? An LPR parent can petition for an unmarried child over age 21. I searched through the forum and some threads are stating that the original priority date can be retained, while others say that new one has to be assigned. Is there a thread or an article that would summarize what options we have? If not, would someone please explain them? There is no retention of a parent's PD in any cases for your cousins. The US Supreme Court settled this controversy in 2014. http://asianjournal.com/immigration/supreme-court-denies-priority-date-retention-to-aged-out-children/

Thank you.

[aaron2020 11,651]

Only options for your cousins.

LPR parent petitions for an unmarried child over age 21. The current wait is 7 years for those eligible for visas now. It could be a quicker or slower wait for your cousins, and there is no way to know. It has been as quick as 5 years and as long as 9 years.

If a child gets marry while the petitioning parent is an LPR, the case is over since an LPR can never have a case for a married child. The most common scenario is that the petitioner and beneficiary will fail to update the child's marriage and think the case is okay when it is not. Don't make this mistake.

Once the petitioning parent becomes a USC, the child can marry and the case would convert from F2b to F3. However the wait is an additional 5 years since the current wait is 13 years for a USC to petition a married child. It would be smarter not to marry and immigrate in 7 years, then go back to marry, then petition for a spouse which currently takes 2 years. In the past, it has been a few months to as much as 5 years for an LPR to petition a spouse. This is still better than a USC petitioning a married child.

[f10295 0]

hi

yes for the first question, once the parent becomes a USC. they change category but they retain the priority date

residents can't petition for married children, only USC can file for married children. if they marry before the petitioner becomes a USC, the petition becomes voided, and their parent must file a new petition, with a new priority date.

always that there Is a new petition, the new priority date will be close to the receiving date

Thank you guys once again for the quick replies.

Sorry for so many questions but does the following seem correct?

Their parents apply today as GC holders using the F2B category. Wait of around 7-8 years.

If the parents become citizens in 5 years, the category would be moved to F1, BUT I am reading that a portion of the CSPA allows the category to remain as F2B as that seems to be 1 year ahead of F1. If the F2B category is allowed to be retained, it should be the same initial estimated wait period. But if the category does indeed move to F1, it looks like I would add around 1 year to the wait?

If the children do get married anytime within the next 5 years, whether it is tomorrow or 5 years from now, a fresh case will need to be applied for them once the parents become US Citizens as F3. The wait for that is around 5 years + 12 years = around 17 years?

[aaron2020 11,651]

Thank you guys once again for the quick replies.

Sorry for so many questions but does the following seem correct?

Their parents apply today as GC holders using the F2B category. Wait of around 7-8 years.

If the parents become citizens in 5 years, the category would be moved to F1, BUT I am reading that a portion of the CSPA allows the category to remain as F2B as that seems to be 1 year ahead of F1. If the F2B category is allowed to be retained, it should be the same initial estimated wait period. But if the category does indeed move to F1, it looks like I would add around 1 year to the wait? Under CSPA, the beneficiary must request to be retained in the F2b category.

If the children do get married anytime within the next 5 years, whether it is tomorrow or 5 years from now, a fresh case will need to be applied for them once the parents become US Citizens as F3. The wait for that is around 5 years + 12 years = around 17 years? + 1 year to become a US citizen. So, it's more like 19 years. It doesn't make sense for them to get marry. Just live together, have children, immigrate in 7 year, then go home to get marry, and then petition for the spouse.

[aaron2020 11,651]

My nephew is in the exact same position as your cousins. He aged out and could not immigrate with his parents. Currently, he lives with his girlfriend and their 2 years old child. His LPR father filed for him 6 years ago. He will get his immigration visa next year. Once he gets his green card, he will fly back to Vietnam to marry so he can file for his wife. That's a lot better than waiting for his dad to become a USC and waiting 13 more years. It's better for his child to come to the US at age 5 than at age 15.

[f10295 0]

What's the +1 year for? I thought it was 5 years to become a citizen + around 12 year wait for F3?

[aleful 1,905]

hi

more likely 6 months, in 5 years they are eligible for citizenship, that means they can apply up to 90 days before the 5 years, but then it takes a few months until they actually get citizenship, and that is, if they pass the citizenship exam the first time

once they pass the test, and have their oath ceremony and get the citizenship certificate, then they can apply for a married child

so it is over 17 years, if everything goes well