Step daughter petitioned when she was 18

[Paps IR5 6]

Hi, 

This is for a friend. Her US husband petitioned her daughter when she was 20. It got approved but at the time the beneficiary did not act on it, reason too busy for schooling. 

She turns 22 so they never pursue, USCIS SEND them email to pay for the visa. The petitioner is so confused because they know the step daughter has aged-out. 

Their question, should they go ahead pay for visa knowing she aged-out? 

Will it be a waste of money and time? 

They think they can pursue it since uscis sent them an email to pay for the visa

Edited August 21, 2020 by Paps IR5

[geowrian 22,338]

How old was the daughter at the time of the marriage? I'm going to assume she was under 18 given that the petition was approved, but I just want to verify.

 

CSPA should protect the "child" from aging out ("child" is quoted as they are really an adult now, bu treated as a child for immigration purposes still). They retain IR-2 status as their age is frozen so long as the petition was filed prior to turning 21.

Edited August 21, 2020 by geowrian

[Paps IR5 6]

She was 15 when the petitioner matud to the mother. So is this a go to pay for visa? 

[geowrian 22,338]

1 minute ago, Paps IR5 said:

She was 15 when the petitioner matud to the mother. So is this a go to pay for visa? 

I don't see an issue. Normally there is a 1 year "seek to acquire" requirement for CSPA, but that does not apply to IR-2 cases.

 

@SusieQQQ See any issue? Just want a second set of eyes if you don't mind...

[TBoneTX 46,262]

Thread is moved from the K-3 Process forum to the CR-1 Process forum.

[SusieQQQ 11,587]

35 minutes ago, geowrian said:

I don't see an issue. Normally there is a 1 year "seek to acquire" requirement for CSPA, but that does not apply to IR-2 cases.

 

@SusieQQQ See any issue? Just want a second set of eyes if you don't mind...

Doesn’t the case lapse if nothing has happened after a year? Is that what the email from NVC is about, to stop that happening? I’m not overly familiar with IR/CR cases - so not sure why all this seems to have taken so long if not for that reason. Definitely agree that as long as the child remains unmarried she is protected by CSPA and doesn’t age out. 
 

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. However, you must remain unmarried in order to qualify.

[geowrian 22,338]

15 hours ago, SusieQQQ said:

Doesn’t the case lapse if nothing has happened after a year? Is that what the email from NVC is about, to stop that happening? I’m not overly familiar with IR/CR cases - so not sure why all this seems to have taken so long if not for that reason. Definitely agree that as long as the child remains unmarried she is protected by CSPA and doesn’t age out. 
 

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. However, you must remain unmarried in order to qualify.

An existing case (the visa application registration) does expire after 1 year by default per INA 203(g). It can be reinstated. The petition itself does not expire, and CSPA should remain in effect (thanks for confirming!).

 

Is this an existing visa application, though? I don't think that has been actually started yet...it starts after paying the fee. So I think the OP is fine there too.

[SusieQQQ 11,587]

1 hour ago, geowrian said:

An existing case (the visa application registration) does expire after 1 year by default per INA 203(g). It can be reinstated. The petition itself does not expire, and CSPA should remain in effect (thanks for confirming!).

 

Is this an existing visa application, though? I don't think that has been actually started yet...it starts after paying the fee. So I think the OP is fine there too.

hmm..I think I interpret that differently from you, the below makes it sound to me like they need to do something (pay fees, apply for a visa etc) after notification of availability to avoid it lapsing:

 

Important Notice: Termination of Registration:

Immigration and Nationality Act (INA) section 203(g) provides that the “Secretary of State shall terminate the registration (petition) of any alien who fails to apply for an immigrant visa within one year” of notice of visa availability.... Therefore, if you do not respond to notices from NVC within one year you risk termination of your petition under this section of law and would lose the benefits of that petition

 

https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing.html

[geowrian 22,338]

36 minutes ago, SusieQQQ said:

hmm..I think I interpret that differently from you, the below makes it sound to me like they need to do something (pay fees, apply for a visa etc) after notification of availability to avoid it lapsing:

 

Important Notice: Termination of Registration:

Immigration and Nationality Act (INA) section 203(g) provides that the “Secretary of State shall terminate the registration (petition) of any alien who fails to apply for an immigrant visa within one year” of notice of visa availability.... Therefore, if you do not respond to notices from NVC within one year you risk termination of your petition under this section of law and would lose the benefits of that petition

 

https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing.html

Hmm...after reading the FAM entry (https://fam.state.gov/fam/09FAM/09FAM050413.html), I concur with you on what should happen.

That said, the requirement is that NVC notify the applicant prior to termination and allow for them to respond that they want to keep the registration open. Their system should have notified them if the case was terminated.

Since that does not appear to have happened here, and NVC apparently is requesting to proceed with the case via payment (they can't if the petition was already officially terminated), I would imagine the petition has remained intact and they could proceed.

My suggestion is to contact NVC and verify, and/or check with USCIS if the petition is still intact.

Edited August 21, 2020 by geowrian

[SusieQQQ 11,587]

43 minutes ago, geowrian said:

Hmm...after reading the FAM entry (https://fam.state.gov/fam/09FAM/09FAM050413.html), I concur with you on what should happen.

That said, the requirement is that NVC notify the applicant prior to termination and allow for them to respond that they want to keep the registration open. Their system should have notified them if the case was terminated.

Since that does not appear to have happened here, and NVC apparently is requesting to proceed with the case via payment (they can't if the petition was already officially terminated), I would imagine the petition has remained intact and they could proceed.

My suggestion is to contact NVC and verify, and/or check with USCIS if the petition is still intact.

That was what I asked/speculated - that NVC was contacting them to proceed so that the case doesn’t lapse.  Look again at the wording of the notice from NVC in first post -

[pushbrk 13,166]

Good answers so far.  If they want to pursue the visa, they should proceed.  However they are not being asked to pay for a visa.  A visa is not purchased.  They are being informed of how to pay the visa application fee and apply for a visa.

[Demise 1,351]

IR-2s don't age out, so yes she can use this petition to immigrate basically forever (as long as she doesn't marry, that'd drop her to F3). She can be 60 and still be treated as under 21, well assuming that the petitioner is alive or there's another relative willing to take on the case at that point.

Edited August 22, 2020 by Demise

[Demise 1,351]

6 hours ago, geowrian said:

An existing case (the visa application registration) does expire after 1 year by default per INA 203(g). It can be reinstated. The petition itself does not expire, and CSPA should remain in effect (thanks for confirming!).

 

Is this an existing visa application, though? I don't think that has been actually started yet...it starts after paying the fee. So I think the OP is fine there too.

Honestly even termination of registration isn't a big deal. That just means that NVC dropped the case due to inactivity. The underlying I-130 remains valid indefinitely, the petitioner can file I-824 to send the case to NVC again.

[SusieQQQ 11,587]

32 minutes ago, Demise said:

Honestly even termination of registration isn't a big deal. That just means that NVC dropped the case due to inactivity. The underlying I-130 remains valid indefinitely, the petitioner can file I-824 to send the case to NVC again.

But if they want her to come anyway and the only question about paying fees now is whether she’s aged out, why would they wait just to pay $465 (or whatever it’s going up to after October) to file another form ?

[Paps IR5 6]

36 minutes ago, Demise said:

Honestly even termination of registration isn't a big deal. That just means that NVC dropped the case due to inactivity. The underlying I-130 remains valid indefinitely, the petitioner can file I-824 to send the case to NVC again.

The NVC did not ask for form 824. They area asking to pay for the DS-260.