Please help clear this up

[Marc&Rosie 0]

I'll try to make this as short and as clear as possible.

My wife got her Green Card last year. Chinese national. Her daughter had her K2 but due to an ignorant lawyer giving us bad advice, the K2 route is no longer an option. We filed the I-130 and the USCIS received it Dec. 6, 2011. Her 21st birthday was Jan 16, 2012. Time frame per USCIS says that they may make a decision on if she is eligible for a visa in 8 months from receiving the 130 (current processing times). When this happens will the CSPA help us in keeping the F2A? Or will she be F2B no matter what and have a 7 or 8 year wait. Thanks for any help. I truly appreciate it. Marc

[Darnell 8,478]

because of CSPA, her age is pegged as of the NOA-1 receipt date on the I-130.

You could have filed the I-130 with a letter requesting expedite for 2 valid reasons:

1. mother is already in USA and

2. potential age out,

then go fast at NVC with EP.

YOU can request an expedite now - start with a telephone call into USCIS, get a Tier 2 Human (not the first person that answers the phone), an ISO (ask for an ISO) and start the telephone intake process there. Don't get yer lawyer involved at this point, since he's a borderline idiot.

Then pay attention to the instructions that you are given - you could be told (pick one or more)

1. fax in stuff (like the mother's NOA-2 notice and/or copy of greencard)

2. email in stuff

3. mail in stuff

Then from 4 to 12 calendar days later, you'll hear something about it.

[JimVaPhuong 4,863]

because of CSPA, her age is pegged as of the NOA-1 receipt date on the I-130.

You could have filed the I-130 with a letter requesting expedite for 2 valid reasons:

1. mother is already in USA and

2. potential age out,

then go fast at NVC with EP.

YOU can request an expedite now - start with a telephone call into USCIS, get a Tier 2 Human (not the first person that answers the phone), an ISO (ask for an ISO) and start the telephone intake process there. Don't get yer lawyer involved at this point, since he's a borderline idiot.

Then pay attention to the instructions that you are given - you could be told (pick one or more)

1. fax in stuff (like the mother's NOA-2 notice and/or copy of greencard)

2. email in stuff

3. mail in stuff

Then from 4 to 12 calendar days later, you'll hear something about it.

I'm not sure I see the point in any of this. The child was apparently over 18 when they married, so the permanent resident mother filed the I-130. The priority date is established when the petition is received, and the beneficiary is going to have to wait until that priority date is current before they can apply for a visa. At this point, unless USCIS sits on the petition until after the priority date is current (not likely) then it won't matter how fast they approve it. Expediting the approval of the petition won't help anything. In fact, it might even cause harm. CSPA allows them to deduct the time that the petition spent waiting for approval at USCIS, so the longer USCIS has the petition, the more time they can deduct. If USCIS approves the petition just before her priority date becomes current then it's possible she might even make it as an F2A. It's highly unlikely, though. They've only got about a month of spare time to work with here.

[Darnell 8,478]

duh. over 18 at time of marriage? disregard all I mentioned.

Jim, the mother filed the I-130? That's a different horse, altogether, then..

[JimVaPhuong 4,863]

duh. over 18 at time of marriage? disregard all I mentioned.

Jim, the mother filed the I-130? That's a different horse, altogether, then..

I'm assuming this is the case because he said his wife got her green card last year, and that the daughter was originally going to be a K2 but the lawyer dropped the ball and the K2 was "no longer an option". I'm presuming it hasn't been that long since the K2 window closed since they filed the I-130 in December. Also, since his step-daughter turned 21 in January then they either married after she was 18, or the K2 window actually closed years ago, and they dragged their a$$ filing for his wife's green card.

Yeah, I know... a lot of assumptions.

[Marc&Rosie 0]

We never drug our a$$ filing for my wife's green card.

K-2 is not an option because our attorney said it was OK if she came from England for a visit then returned and that all the paperwork could be taken care of without her here in the USA. And that she would just need to return for a week or two to take care of the biometrics. Of course...so wrong. Once she left she can't come back under the K-2. It's single entry. You can say that we were stupid for not researching the K-2 more and for not knowing exactly what was what, but we paid this guy to do all of the thinking and do what was right. He's an immigration attorney. Said he had done over 100 of these. Obviously he misrepresented his expertise and we are paying for it. Anyway...now we're doing everything on our own...or trying to.

So what you are saying is that because we have the NOA stating that they received the 130 on December 6, 2011 that her age is frozen at 20 years and 11 months. So she'll still be considered an F2A? Now the cut off date is November 2009. So this means that we have approximately a 3 year wait for her priority date to become current. Then she can apply for a visa?

I'm not as dense as it might seem on these things. I just want to make sure and I will not hire another attorney.

Thanks so much for your help!!

Marc

[bigdog 376]

After you file, the date can be moved up after the LPR gets citizenship in 3 years. Another blow for attorneys.

[aaron2020 11,651]

We never drug our a$$ filing for my wife's green card.

K-2 is not an option because our attorney said it was OK if she came from England for a visit then returned and that all the paperwork could be taken care of without her here in the USA. And that she would just need to return for a week or two to take care of the biometrics. Of course...so wrong. Once she left she can't come back under the K-2. It's single entry. You can say that we were stupid for not researching the K-2 more and for not knowing exactly what was what, but we paid this guy to do all of the thinking and do what was right. He's an immigration attorney. Said he had done over 100 of these. Obviously he misrepresented his expertise and we are paying for it. Anyway...now we're doing everything on our own...or trying to.

So what you are saying is that because we have the NOA stating that they received the 130 on December 6, 2011 that her age is frozen at 20 years and 11 months. [No, this is completely incorrect.] So she'll still be considered an F2A? Now the cut off date is November 2009. So this means that we have approximately a 3 year wait for her priority date to become current. Then she can apply for a visa?

I'm not as dense as it might seem on these things. I just want to make sure and I will not hire another attorney.

Thanks so much for your help!!

Marc

Marc,

I hate to be the bearer of bad news, but your stepdaughter will have an 8 years wait in the UK for an immigration visa.

You cannot file an I-130 for your stepdaughter since the marriage occurred after her 18th birthday.

Your wife, as an LPR, can file for her daughter. Initially, the case will be an F2a case since it was filed before your stepdaughter's 21st birthday. However, her age does not freeze when your wife filed. The Child Status Protection Act (CSPA) does not work that way for family preference cases (F1, F2a, F2b, F3, and F4). In an Immediate Relative case, CSPA freezes the age on the Priority Date for the beneficiary. For a family preference case, CSPA age is determined at the time a visa number becomes available and only the time USCIS takes to process the I-130 is subtracted from the beneficiary's age.

Because your stepdaughter's age will not be frozen and only the time it takes USCIS is not counted against her, the maximum time that CSPA will protect her is the time between her Priority Date and her 21st birthday. Her 21st birthday was Jan. 16, 2012, and her PD is Dec. 6, 2011. That's about 41 days. If her PD is not current 41 days after USCIS approves her case, CSPA will not help her. She will age out into the F2b category where there is an 8 years wait for an immigration visa. 8 years where she will need to stay unmarried if her mother does not become a US citizen.

Sorry.

--------------------

Skip this if you want the short answer.

The K-2 was the fastest option for your stepdaughter.

There is a quirk in petitioning for the child of a fiancee for a K-2 versus petitioning for a child of a spouse.

The quirk is that a US citizen can petition for a K-2 up to one year after the K-1 is issued. The K-2 holder must be under 21 when entering the US. The child's age at the time of the marriage is irrelevant. So, a 20 years old child would qualify for a K-2 even if the marriage occurred after the child's 18th birthday.

The situation is different when filing an I-130 for a stepchild. The marriage between the US citizen stepparent and biological parent must occur before age 18 in order for the US citizen to qualify to file an I-130 for the stepchild. The US citizen cannot file for the stepchild if the marriage occurred after the child's 18th birthday.

So, the quirk allows a US citizen to bring a child of a fiancee from age 18-21 when the marriage occurred during that time, but not for a US citizen to bring the child of a spouse.

Based on the information that you presented, it appears the marriage occurred after your stepdaughter's 18th birthday.

An I-130 filed by you, the US citizen stepparent, for your stepdaughter will be denied if the marriage occurred after her 18th birthday.

--------------

You should also sue your attorney for malpractice. Nice. Delay a girl's chance to immigrate to the US for 8 years. Wonderful counsel. Idiot. Time to tally up the damages, and have the attorney pay you.

Edited April 9, 2012 by aaron2020

[JimVaPhuong 4,863]

We never drug our a$$ filing for my wife's green card.

Aaron answered your questions thoroughly, but I just wanted to clear this up. I wasn't accusing you of dragging your tail. I made some assumptions based on what you wrote that seemed reasonable. A couple of assumptions I made were that you married your wife after your step-daughter was 18, and that your wife and not you had filed the I-130. My comment to Darnell was that my assumptions were reasonable, based on the timeline you had given, unless you had waited a long time to file for your wife's adjustment of status, which I presumed was unlikely. I wasn't accusing you of having done anything wrong at all. I was simply trying to justify my assumptions. I apologize if it offended you.

[Darnell 8,478]

so the daughter DID come into the USA on a K-2, and then left the country? is that right?