Petition for sister and her husband

[Michaelvisa 0]

I’m a us citizen and planning to petition for my sister in Vietnam. Can I also petition her husband as well?  If so. Do I need to submit a separate petition for her husband?

[SusieQQQ 11,587]

One petition. It allows derivatives (spouse and unmarried children under 21) on same i130. Bear in mind you’re looking at a 15+ year wait for a visa. 
 

 

Edited June 2, 2020 by SusieQQQ

[Unlockable 7,315]

4 hours ago, Michaelvisa said:

I’m a us citizen and planning to petition for my sister in Vietnam. Can I also petition her husband as well?  If so. Do I need to submit a separate petition for her husband?

No need to petition for her husband. He will be allowed to get a visa when the time comes. You are looking at 12 - 15 years before she gets the visa. If any of her kids are over 21 or have married in that time, they will not be able to get a visa.

[Michaelvisa 0]

Susie

 

i understood In the wait time. I just need to get it right when I submit the 1-130.    Thanks for the information 

 

well on of her son is currently 14 years old.  Are u 100% sure if her son turned over 21 that he won’t able to get the visa?  Is there a regulation or rules set that I can read to confirm this. 

[SusieQQQ 11,587]

35 minutes ago, Michaelvisa said:

Susie

 

i understood In the wait time. I just need to get it right when I submit the 1-130.    Thanks for the information 

 

well on of her son is currently 14 years old.  Are u 100% sure if her son turned over 21 that he won’t able to get the visa?  Is there a regulation or rules set that I can read to confirm this. 

Nothing much you can do when you submit the i130 other than list who the current derivatives are. All that stuff gets dealt with when the actual paperwork for processing the visa gets done, around a year before it’s to be issued. Lots of things can happen over 15 years.

 

from the bottom of page 1 of the i130 instructions (siblings are 1.E)

https://www.uscis.gov/system/files_force/files/form/i-130instr.pdf?download=1

 

 If the beneficiary qualifies under Items 1.C., 1.D., or 1.E. above, you are not required to file separate petitions for the beneficiary’s spouse or unmarried children under 21 years of age. They are considered derivative beneficiaries and you should list them in Part 4. of this petition.

here’s a description on children. It’s from the section that talks about the protection they get (their age is adjusted by the length of time it takes uscis to approve a petition) but a 14 year old derivative now is almost guaranteed to age out despite this. Note that the parents will be able to file for him assuming he remains unmarried when they get their own green cards, but that’s another wait.
https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes.

Edited June 2, 2020 by SusieQQQ

[Michaelvisa 0]

Ok. As long he is unmarried After he turn 21 years old then her son is eligible for the visa and get the green card.  Thanks for reference and the help. 

[SusieQQQ 11,587]

2 minutes ago, Michaelvisa said:

Ok. As long he is unmarried After he turn 21 years old then her son is eligible for the visa and get the green card.  Thanks for reference and the help. 

No, that’s not what I said. Please read the link on CSPA properly. 

[Michaelvisa 0]

am I reading wrong? 
 

Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6, 2002.

CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. The calculated age is the child’s “CSPA age.” This allows some people to remain classified as children beyond their 21^stbirthday. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child.

Edited June 2, 2020 by Michaelvisa

[SusieQQQ 11,587]

9 minutes ago, Michaelvisa said:

tam I reading wrong? 
 

effect on August 6, 2002.

CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. The calculated age is the child’s “CSPA age.” This allows some people to remain classified as children beyond their 21^stbirthday. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child.

If. Not always. Some. Not all. You need to do the calculation when the visa is available. At 15 years or more for a visa to be available, your nephew will be almost 30. He will need to have seen USCIS take around 9 years to approve the petition (processing time from receipt to i797 approval notice) to have a CSPA age below 21 (actual age minus processing time) at that time. The longer it takes for a visa to be available - some people estimate F4 petitions filed now could take more like 20 years - the worse the calculation looks for him. Is it possible he’ll be ok? Yes. Is it likely? Not in my opinion. 
 

The wait for a visa number is not due to slow uscis processing. It is due to a long queue of F4 applicants vs the annual quota. Currently there are over 2 million people in the F4 queue, compared to an annual quota of 65000 visas available for this category.

Edited June 2, 2020 by SusieQQQ

[NancyNguyen 1,658]

2 hours ago, Michaelvisa said:

am I reading wrong? 
 

Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6, 2002.

CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. The calculated age is the child’s “CSPA age.” This allows some people to remain classified as children beyond their 21^stbirthday. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child.

You haven't even submitted I-130 for your sister so there is no such precise calculation for CSPA now. You can only be able to calculate when your priority date is about to be current.

[Ontarkie 14,432]

~~Moved to Bringing Family of USC, form What Visa DO I Need ~~

[geowrian 22,338]

CSPA may protect the child. It also may not. No way to know as it depends on:

1) How long it takes USCIS to approve the I-130. Longer is better here.

 

2) When exactly the Priority Date becomes current. People who applied a little under 15 years ago are becoming current now, but historically this category only advances ~10 months annually on average (meaning it falls further behind by 2 more months every year, on average).

Although averages here have a high level of variability...the category could advance 2-3 years at a time, then go back a year or more the next year. If, for example, actual progression is just 9 months, expect a 20 year wait.

[Unlockable 7,315]

6 hours ago, Michaelvisa said:

am I reading wrong? 
 

Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6, 2002.

CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. The calculated age is the child’s “CSPA age.” This allows some people to remain classified as children beyond their 21^stbirthday. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child.

As already stated, CSPA is not guaranteed. And since you have not applied for your brother yet, you can't preemptively predict if your brother's kids will be protected. If one of the kids is 14 now, then in 15 years he will be 29 or 30 years old. That is a full grown man. Needing to immigrate with his parents will be difficult to justify. 

 

You best bet is to apply as soon as you you can, and just as important, advise everyone involved that it will take a long time and there is a strong possibility the kids will not be able to immigrate. That way, they will know before hand and won't be hugely disappointed if it doesn't happen.

[Boiler 46,000]

You are effectively petitioning for your Sister and any spouse to retire to the US, how practical that is well another matter.

 

The son will be approaching middle age, may well be married with family.

 

 

[SusieQQQ 11,587]

4 hours ago, geowrian said:

 

 

2) When exactly the Priority Date becomes current. People who applied a little under 15 years ago are becoming current now, but historically this category only advances ~10 months annually on average (meaning it falls further behind by 2 more months every year, on average).

Although averages here have a high level of variability...the category could advance 2-3 years at a time, then go back a year or more the next year. If, for example, actual progression is just 9 months, expect a 20 year wait.

another way of looking at it - current priority date is Aug 2006, say 14 years. Back in August 2006 - those people looking at the then current visa bulletin would have expected to wait 11 years based on what they saw, not the 14 it’s turned out for them.  
 

I can’t find a proper history of the waiting list. In Nov 2009 (the only number I can find for around then), there were 1.7m on the waitlist for F4; in Nov 2019 that was over 2.1m. Another ~400k people added (or a total of around 6 times the annual quota, added on). So when we say people who applied nearly 15 years ago are becoming current now, important to realize that the queue is significantly longer now than it was for them.
 

 

35 minutes ago, Boiler said:

You are effectively petitioning for your Sister and any spouse to retire to the US, how practical that is well another matter.

 

The son will be approaching middle age, may well be married with family.

 

 

Precisely.