boltonja1

Hi folks
Does anyone know what the situation is if you apply for a Green card when your (adult) child is 19 and he turns 21 before a decision on the Green Card is given. Is he included if the Green card is accepted, or does the fact that he has turned 21 mean that he is on his own? Thanks.

dreamercon

This is a complicated question. You need to disclose more facts if you need an answer such as the basis for the green card, the dates of filing and dates of approval of the immigrant petition. Or you can google the "Child Status Protection Act".

christmasoompa

Haven't you already asked this question before? http://britishexpats.com/forum/showt...93#post7196393

I believe the advice was to consult an immigration lawyer, and also to apply as soon as possible - that was in January and it's now May, have you taken the advice and already applied?

boltonja1

I'm impressed you recognised the message. Yes, you are correct. We've been up to our eyes with tax returns and queries about that such that the visa query went on the back burner. I guess Id rather find someone who went through this before consulting an (expensive) attorney. My heart tells me that if a student child is on the original application and remains a dependent that they should still be part of the family green card but then again the authorities may not take the same view! It is likely he will be doing a 4 year engineering degree so we would like to give him the option of living here in the US or in the UK.

Socal Local

Does your husband's employer not already have an immigration attorney? If not you can probably have an initial discussion with an attorney without spending a lot of money. At the moment I don't think you have enough details to be able to rely on reading someone else's experience and assuming the same will apply to you.

I replied on your previous thread and the reason I was recommending doing something about this as soon as possible was not just because of the situation with your son. If your husband is on an L1B visa that is for a maximum of 5 years and there is a good chance that some of the employment based green cards might take longer than this. Therefore aside from the issue of your son you need to understand what the options are for your husband's employer to apply for a green card.

I had problems with my employer initially as they thought it would be fine to wait until about a year before the L1B ran out before doing anything about a green card. It was only when I spoke to an immigration attorney and went back to them with the details of what I had found out (including the fact that I should have been on an L1A rather than an L1B) that I managed to get things moving along.

jumping doris

Very briefly, we were in a similar situation in that our eldest daughter could have reached 21 without a green card.
Being a student and a dependant doesn't count.

You need to move quickly and consult a lawyer.
My OH's company were really good about the ageing out issue and we spoke to the company lawyers as aften as we needed to about it. Are you not able to do the same?


They knew that if we didn't get far enough through the system to protect her application then we would be going home and they didn't want that.

All I know from a laymans point of view is that at some point in the GC process your childs age becomes locked and you need to reach that point before your son is 21. I read a lot about the Child Status Protection Act but really I didn't understand it properly because I am not a lawyer.

boltonja1

Thank you for your thoughtful reply. I will push my husband to contact a lawyer for advice on the best way forward.
What is interesting is that, like you, he should have been on an L1A rather than L1B. The process was started under L1A but then the company was taken over and the application was started afresh under L1B (by mistake we think) instead of L1A. Did you change your status to L1A before applying for the green card?

We are almost 1 year into our 5 years on the visa and so we are hoping that the company will now consider applying for a green card for us. We are in a tricky family situation with a soon-to-be 19 year old, a 17 year old and a 13 year old. Thanks again.

boltonja1

[QUOTE=jumping doris;7572230]Very briefly, we were in a similar situation in that our eldest daughter could have reached 21 without a green card.
Being a student and a dependant doesn't count.

You need to move quickly and consult a lawyer.
My OH's company were really good about the ageing out issue and we spoke to the company lawyers as aften as we needed to about it. Are you not able to do the same?


They knew that if we didn't get far enough through the system to protect her application then we would be going home and they didn't want that.

Thank you for your reply. How far into the system did you have to get to protect her application and how long did it take you to reach that point? (How long ago are we talking because things can change can't they?)

boltonja1

Yes, you are right. I only disclosed basic info but the replies tell me we need to consult a good lawyer!

jumping doris

[QUOTE=boltonja1;7573463] I can't remember. I think we had to reach adjustment of status.
We were on H1B/H4. Our application went in in January 2007, we adjusted stautus in July 2007 and received our GC in January 2008. Category EB2.

Socal Local

No, but we did file the two parts of the green card process non-concurrently. The I-140 in the EB1C category was filed first and then when my L1 was due for renewal we applied to change it to an L1A at the same time. Once this was approved, the I-485 adjustment of status was filed. I would suggest your husband speaks with an attorney to see if his job meets the criteria for an EB1C green card, because if so, this could be the answer to a lot of your problems. This category is usually current so you can file the I-485 and I-140 concurrently which I think based on jumpingdoris's post is what you need to do to prevent problems for your son. If it was filed soon there is actually a pretty good chance you might have the green cards before he is 21 anyway - mine took 18 months and that was applying in the height of the July 07 rush of applications. I've heard they are being processed quicker now.

The other good thing about the EB1C category is that you don't have to do the labor certification which cuts down on the cost for the company, which might help if you are still working on getting them to go for it.

John Manley

As others have mentioned, this is definitely a Child Status Protection Act issue. A child can fall out of the protection of this act in many ways. You should show at least the following to an attorney:
--the visa petition (I-130 or I-140 approval),
--where you are at in the process/what is your exact status: Are you a citizen?, Are you an LPR? Are you a green card applicant? If so, have you submitted the I-485 or DS-230?
--DOB/COB of your child

CSPA involves making a calculation based on your circumstances and loop holes do exist whereby a child can fall outside the areas of protection.

boltonja1

Thank you for taking the time to reply. We will pursue that avenue and who knows, we may contact you again!

Folinskyinla

Hi John:

As we all know, the CSPA is only six years old, so implementing regulations have yet to be issue to clarify the entire meaning of the thing.

There is also a provision in CSPA that provides for the "automatic" conversion of former children who did age out under the CSPA formula to the appropriate classification while preserving the priority date. The position of the Department of State is that one must make an affirmative application to the USCIS to take advantage of this "automatic" conversion. In other words, it is not State's problem -- go to DHS. The position of USCIS is that since the conversion is "automatic" it is up to State Department. In other words, it is not DHS's problem.

One day, this will come up in an adjustment case with parents with some bucks who can afford to pay for the litigation. [Yes, I know that, although DHS is the one generating clients and fees for many immigration lawyers, it is the lawyer's fault. <sigh> ].