jumping doris

Hi everyone
As the move looms nearer I find myself thinking up these questions in the small hours. I'm trying to keep the more bizarre ones to myself but can anyone help me with this (I have searched the site to no avail)
When we move to the states my eldest daughter will be 16 and a half. What will happen to her when she becomes 21. If she does not have a green card will she have to leave the country? Many thanks.

jjmb

If you don't have a gc by the time she is 21 but she is at University, she will be able to transfer to a student visa, then in her last yr, she will be able to transfer to H1b visa so she can intern.

In all probability you will be in the gc process by then as they are introducing this new PERM system which is intended to make in a lot easier for H1b/H4 holders to get a gc. As long as you application is receipted before her 21st birthday, she will be OK as her age will be locked from that date.

jumping doris

thankyou. I did get your email and tried to reply but I don't think it got to you.

Jonathan McNeil Wong

jjmb wrote:
    >>Hi everyone
    >>As the move looms nearer I find myself thinking up these questions in
    >>the small hours. I'm trying to keep the more bizarre ones to myself
    >>but can anyone help me with this (I have searched the site to no
    >>avail)
    >>When we move to the states my eldest daughter will be 16 and a half.
    >>What will happen to her when she becomes 21. If she does not have a
    >>green card will she have to leave the country? Many thanks.
    >
    >
    > If you don't have a gc by the time she is 21 but she is at University,
    > she will be able to transfer to a student visa, then in her last yr, she
    > will be able to transfer to H1b visa so she can intern.
    >
    > In all probability you will be in the gc process by then as they are
    > introducing this new PERM system which is intended to make in a lot
    > easier for H1b/H4 holders to get a gc. As long as you application is
    > receipted before her 21st birthday, she will be OK as her age will be
    > locked from that date.
    >

She "may" be able to change status to student. Not "will"

Basic issue: as a student, she must demonstrate nonimmigrant intent.
This might be an issue if her whole family is here.

In practice, USCIS has not emphasized this issue as much as the posts.
--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.

================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue, Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============

Ingo Pakleppa

jjmb wrote:
    >>Hi everyone
    >>As the move looms nearer I find myself thinking up these questions in
    >>the small hours. I'm trying to keep the more bizarre ones to myself
    >>but can anyone help me with this (I have searched the site to no
    >>avail)
    >>When we move to the states my eldest daughter will be 16 and a half.
    >>What will happen to her when she becomes 21. If she does not have a
    >>green card will she have to leave the country? Many thanks.
    >
    >
    > If you don't have a gc by the time she is 21 but she is at University,
    > she will be able to transfer to a student visa, then in her last yr, she
    > will be able to transfer to H1b visa so she can intern.
    >
    > In all probability you will be in the gc process by then as they are
    > introducing this new PERM system which is intended to make in a lot
    > easier for H1b/H4 holders to get a gc. As long as you application is
    > receipted before her 21st birthday, she will be OK as her age will be
    > locked from that date.
    >

Be a bit careful here: this may not apply if the priority date becomes
backlogged! Basically, daughter who is 16 1/2 has 4 1/2 years before she
turns 21. Assume that the parents file the paperwork file their PERM LC
right away, and their I-140 on her 17th birthday. She would have four
years left. Let's say that CIS takes 12 months to process the I-140. In
this case, the daughter would still age out at age 22, if the quota
backlog develops to that point.

Jonathan McNeil Wong

Ingo Pakleppa (see Web site for email) wrote:
    > jjmb wrote:
    >
    >>> Hi everyone
    >>> As the move looms nearer I find myself thinking up these questions in
    >>> the small hours. I'm trying to keep the more bizarre ones to myself
    >>> but can anyone help me with this (I have searched the site to no
    >>> avail)
    >>> When we move to the states my eldest daughter will be 16 and a half.
    >>> What will happen to her when she becomes 21. If she does not have a
    >>> green card will she have to leave the country? Many thanks.
    >> If you don't have a gc by the time she is 21 but she is at University,
    >> she will be able to transfer to a student visa, then in her last yr, she
    >> will be able to transfer to H1b visa so she can intern.
    >> In all probability you will be in the gc process by then as they are
    >> introducing this new PERM system which is intended to make in a lot
    >> easier for H1b/H4 holders to get a gc. As long as you application is
    >> receipted before her 21st birthday, she will be OK as her age will be
    >> locked from that date.
    >
    > Be a bit careful here: this may not apply if the priority date becomes
    > backlogged! Basically, daughter who is 16 1/2 has 4 1/2 years before she
    > turns 21. Assume that the parents file the paperwork file their PERM LC
    > right away, and their I-140 on her 17th birthday. She would have four
    > years left. Let's say that CIS takes 12 months to process the I-140. In
    > this case, the daughter would still age out at age 22, if the quota
    > backlog develops to that point.

Ingo, do you think CSPA might apply? If the I-140 is filed while
daughter is 17 and CIS takes 12 months to process the I-140, then maybe
at least for that period of time, daughter's attained age is tolled, so
as long as parents either file the I-485 concurrently with the I-140 or
within one year of I-140 approval, daughter could adjust even if she
aged out in the meantime.

I recommend that the original poster discuss these timing issues with an
immigration lawyer.

--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.

================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue, Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============

Ingo Pakleppa

Jonathan McNeil Wong wrote:
    > Ingo Pakleppa (see Web site for email) wrote:
    >
    >> jjmb wrote:
    >>>> Hi everyone
    >>>> As the move looms nearer I find myself thinking up these questions in
    >>>> the small hours. I'm trying to keep the more bizarre ones to myself
    >>>> but can anyone help me with this (I have searched the site to no
    >>>> avail)
    >>>> When we move to the states my eldest daughter will be 16 and a half.
    >>>> What will happen to her when she becomes 21. If she does not have a
    >>>> green card will she have to leave the country? Many thanks.
    >>> If you don't have a gc by the time she is 21 but she is at University,
    >>> she will be able to transfer to a student visa, then in her last yr, she
    >>> will be able to transfer to H1b visa so she can intern.
    >>> In all probability you will be in the gc process by then as they are
    >>> introducing this new PERM system which is intended to make in a lot
    >>> easier for H1b/H4 holders to get a gc. As long as you application is
    >>> receipted before her 21st birthday, she will be OK as her age will be
    >>> locked from that date.
    >> Be a bit careful here: this may not apply if the priority date becomes
    >> backlogged! Basically, daughter who is 16 1/2 has 4 1/2 years before
    >> she turns 21. Assume that the parents file the paperwork file their
    >> PERM LC right away, and their I-140 on her 17th birthday. She would
    >> have four years left. Let's say that CIS takes 12 months to process
    >> the I-140. In this case, the daughter would still age out at age 22,
    >> if the quota backlog develops to that point.
    >
    >
    > Ingo, do you think CSPA might apply? If the I-140 is filed while
    > daughter is 17 and CIS takes 12 months to process the I-140, then maybe
    > at least for that period of time, daughter's attained age is tolled, so
    > as long as parents either file the I-485 concurrently with the I-140 or
    > within one year of I-140 approval, daughter could adjust even if she
    > aged out in the meantime.
    >
    > I recommend that the original poster discuss these timing issues with an
    > immigration lawyer.
    >

Come to think about it, I'm not actually sure here. But I think that
after age 19 (18 + the one year the I-140 took in this example, CIS
would have to deny the I-485 *if the delay was caused by the quota*.
CSPA should only apply if the I-485 delay was caused by CIS processing
times. At least that's my understanding, but you made me think that I
may actually be wrong about it.

Jonathan McNeil Wong

Ingo Pakleppa (see Web site for email) wrote:
    > Jonathan McNeil Wong wrote:
    >
    >> Ingo Pakleppa (see Web site for email) wrote:
    >>> jjmb wrote:
    >>>>> Hi everyone
    >>>>> As the move looms nearer I find myself thinking up these questions in
    >>>>> the small hours. I'm trying to keep the more bizarre ones to myself
    >>>>> but can anyone help me with this (I have searched the site to no
    >>>>> avail)
    >>>>> When we move to the states my eldest daughter will be 16 and a half.
    >>>>> What will happen to her when she becomes 21. If she does not have a
    >>>>> green card will she have to leave the country? Many thanks.
    >>>> If you don't have a gc by the time she is 21 but she is at University,
    >>>> she will be able to transfer to a student visa, then in her last yr,
    >>>> she
    >>>> will be able to transfer to H1b visa so she can intern.
    >>>> In all probability you will be in the gc process by then as they are
    >>>> introducing this new PERM system which is intended to make in a lot
    >>>> easier for H1b/H4 holders to get a gc. As long as you application is
    >>>> receipted before her 21st birthday, she will be OK as her age will be
    >>>> locked from that date.
    >>> Be a bit careful here: this may not apply if the priority date
    >>> becomes backlogged! Basically, daughter who is 16 1/2 has 4 1/2 years
    >>> before she turns 21. Assume that the parents file the paperwork file
    >>> their PERM LC right away, and their I-140 on her 17th birthday. She
    >>> would have four years left. Let's say that CIS takes 12 months to
    >>> process the I-140. In this case, the daughter would still age out at
    >>> age 22, if the quota backlog develops to that point.
    >> Ingo, do you think CSPA might apply? If the I-140 is filed while
    >> daughter is 17 and CIS takes 12 months to process the I-140, then
    >> maybe at least for that period of time, daughter's attained age is
    >> tolled, so as long as parents either file the I-485 concurrently with
    >> the I-140 or within one year of I-140 approval, daughter could adjust
    >> even if she aged out in the meantime.
    >> I recommend that the original poster discuss these timing issues with
    >> an immigration lawyer.
    >
    > Come to think about it, I'm not actually sure here. But I think that
    > after age 19 (18 + the one year the I-140 took in this example, CIS
    > would have to deny the I-485 *if the delay was caused by the quota*.
    > CSPA should only apply if the I-485 delay was caused by CIS processing
    > times. At least that's my understanding, but you made me think that I
    > may actually be wrong about it.

No, upon further review I find that you are correct Ingo; it's only the
processing time that gets deducted.

****

(h)--Rules for Determining Whether Certain Aliens Are Children.
(1)--In general
For purposes of subsections (a)(2)(A) and (d), a determination of
whether an alien satisfies the age requirement in the matter preceding
subparagraph (A) of section 101(b)(1) shall be made using--
(A)--
the age of the alien on the date on which an immigrant visa number
becomes available for such alien (or, in the case of subsection (d), the
date on which an immigrant visa number became available for the alien's
parent), but only if the alien has sought to acquire the status of an
alien lawfully admitted for permanent residence within one year of such
availability; reduced by
(B)--
the number of days in the period during which the applicable petition
described in paragraph (2) was pending.

****

This is another reason to think about concurrent filing. In practice, a
concurrently-filed I-140 and I-485 are adjudicated together. If the
I-485 cannot be adjudicated because a visa number is not available, the
I-140 won't be adjudicated either. So by the time a visa number becomes
available "the number of days during which the applicable petition was
pending" will equal or exceed the number of days waiting for a current
priority date, and aging out won't happen.


--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.

================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue, Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============

Jonathan McNeil Wong

Jonathan McNeil Wong wrote:
    > Ingo Pakleppa (see Web site for email) wrote:
    >
    >> Jonathan McNeil Wong wrote:
    >>> Ingo Pakleppa (see Web site for email) wrote:
    >>>> jjmb wrote:
    >>>>>> Hi everyone
    >>>>>> As the move looms nearer I find myself thinking up these questions in
    >>>>>> the small hours. I'm trying to keep the more bizarre ones to myself
    >>>>>> but can anyone help me with this (I have searched the site to no
    >>>>>> avail)
    >>>>>> When we move to the states my eldest daughter will be 16 and a half.
    >>>>>> What will happen to her when she becomes 21. If she does not have a
    >>>>>> green card will she have to leave the country? Many thanks.
    >>>>> If you don't have a gc by the time she is 21 but she is at University,
    >>>>> she will be able to transfer to a student visa, then in her last
    >>>>> yr, she
    >>>>> will be able to transfer to H1b visa so she can intern.
    >>>>> In all probability you will be in the gc process by then as they are
    >>>>> introducing this new PERM system which is intended to make in a lot
    >>>>> easier for H1b/H4 holders to get a gc. As long as you application is
    >>>>> receipted before her 21st birthday, she will be OK as her age will be
    >>>>> locked from that date.
    >>>> Be a bit careful here: this may not apply if the priority date
    >>>> becomes backlogged! Basically, daughter who is 16 1/2 has 4 1/2
    >>>> years before she turns 21. Assume that the parents file the
    >>>> paperwork file their PERM LC right away, and their I-140 on her 17th
    >>>> birthday. She would have four years left. Let's say that CIS takes
    >>>> 12 months to process the I-140. In this case, the daughter would
    >>>> still age out at age 22, if the quota backlog develops to that point.
    >>> Ingo, do you think CSPA might apply? If the I-140 is filed while
    >>> daughter is 17 and CIS takes 12 months to process the I-140, then
    >>> maybe at least for that period of time, daughter's attained age is
    >>> tolled, so as long as parents either file the I-485 concurrently with
    >>> the I-140 or within one year of I-140 approval, daughter could adjust
    >>> even if she aged out in the meantime.
    >>> I recommend that the original poster discuss these timing issues with
    >>> an immigration lawyer.
    >> Come to think about it, I'm not actually sure here. But I think that
    >> after age 19 (18 + the one year the I-140 took in this example, CIS
    >> would have to deny the I-485 *if the delay was caused by the quota*.
    >> CSPA should only apply if the I-485 delay was caused by CIS processing
    >> times. At least that's my understanding, but you made me think that I
    >> may actually be wrong about it.
    >
    >
    > No, upon further review I find that you are correct Ingo; it's only the
    > processing time that gets deducted.
    >
    > ****
    >
    > (h)--Rules for Determining Whether Certain Aliens Are Children.
    > (1)--In general
    > For purposes of subsections (a)(2)(A) and (d), a determination of
    > whether an alien satisfies the age requirement in the matter preceding
    > subparagraph (A) of section 101(b)(1) shall be made using--
    > (A)--
    > the age of the alien on the date on which an immigrant visa number
    > becomes available for such alien (or, in the case of subsection (d), the
    > date on which an immigrant visa number became available for the alien's
    > parent), but only if the alien has sought to acquire the status of an
    > alien lawfully admitted for permanent residence within one year of such
    > availability; reduced by
    > (B)--
    > the number of days in the period during which the applicable petition
    > described in paragraph (2) was pending.
    >
    > ****
    >
    > This is another reason to think about concurrent filing. In practice, a
    > concurrently-filed I-140 and I-485 are adjudicated together. If the
    > I-485 cannot be adjudicated because a visa number is not available, the
    > I-140 won't be adjudicated either. So by the time a visa number becomes
    > available "the number of days during which the applicable petition was
    > pending" will equal or exceed the number of days waiting for a current
    > priority date, and aging out won't happen.
    >
    >


Ingo points out that concurrent filing would not apply in the case of a
backlogged visa number. But in the case of a retrogression (where a
number is available upon filing but then becomes unavailable),
theoretically the backlog has no effect so long as the I-140 is not
adjudicated ahead of the I-485.



--
Above intended as general commentary, not specific legal
advice. Your mileage may vary.

================================================== =============
Jonathan McNeil Wong Voice: 510-451-0544
Donahue, Gallagher Woods LLP Facsimile: 510-832-1486
P.O. Box 12979 http://www.donahue.com
Oakland, CA 94604-2979 E-mail: [email protected]
================================================== =============

jumping doris

Thank you for your replies even though I have to admit a lot of it went above my head. We are working with the company immigration lawyers re. our H1b and H4 visas so we can ask them about this. Thanks again.

Jozef

"Jonathan McNeil Wong" <[email protected]> wrote in message
news:[email protected] nk.net...
    > Jonathan McNeil Wong wrote:
    >> Ingo Pakleppa (see Web site for email) wrote:
    >> This is another reason to think about concurrent filing. In practice, a
    >> concurrently-filed I-140 and I-485 are adjudicated together. If the
    >> I-485 cannot be adjudicated because a visa number is not available, the
    >> I-140 won't be adjudicated either. So by the time a visa number becomes
    >> available "the number of days during which the applicable petition was
    >> pending" will equal or exceed the number of days waiting for a current
    >> priority date, and aging out won't happen.
    > Ingo points out that concurrent filing would not apply in the case of a
    > backlogged visa number. But in the case of a retrogression (where a
    > number is available upon filing but then becomes unavailable),
    > theoretically the backlog has no effect so long as the I-140 is not
    > adjudicated ahead of the I-485.

Ingo/Jonathan,

That's indeed a watertight rule you came up with Ingo!
However, does this mean that in case the I-140 *was* approved ahead of the
I-485, and a visa number was available at that time, that the CSPA would not
prevent aging out if subsequently the priority date retrogresses before the
I-485 is adjudicated?

Jozef

Ingo Pakleppa

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1

Jozef wrote:
    | "Jonathan McNeil Wong" <[email protected]> wrote in message
    | news:[email protected] nk.net...
    |
    |>Jonathan McNeil Wong wrote:
    |>
    |>>Ingo Pakleppa (see Web site for email) wrote:
    |>>
    |>>This is another reason to think about concurrent filing. In practice, a
    |>>concurrently-filed I-140 and I-485 are adjudicated together. If the
    |>>I-485 cannot be adjudicated because a visa number is not available, the
    |>>I-140 won't be adjudicated either. So by the time a visa number becomes
    |>>available "the number of days during which the applicable petition was
    |>>pending" will equal or exceed the number of days waiting for a current
    |>>priority date, and aging out won't happen.
    |>
    |>Ingo points out that concurrent filing would not apply in the case of a
    |>backlogged visa number. But in the case of a retrogression (where a
    |>number is available upon filing but then becomes unavailable),
    |>theoretically the backlog has no effect so long as the I-140 is not
    |>adjudicated ahead of the I-485.
    |
    |
    | Ingo/Jonathan,
    |
    | That's indeed a watertight rule you came up with Ingo!
    | However, does this mean that in case the I-140 *was* approved ahead of
the
    | I-485, and a visa number was available at that time, that the CSPA
would not
    | prevent aging out if subsequently the priority date retrogresses
before the
    | I-485 is adjudicated?

Unfortunately, no. Only processing delays of the I-140 count. Delays
during I-485 processing don't, regardless of whether it's a processing
delay or a delay because of the quota. That was the gist of Jonathan's
thought: during concurrent filing, often - not always - the I-140 and
the I-485 are adjudicated together. That way, *if* a visa number was
available at the time of filing, and *if* the applicant was lucky enough
to remember to file concurrently, then the I-485 processing time would
effectively be zero, and the child wouldn't age out. It's a good thought
and would indeed work in case of retrogression.

- --
Remember, I am strictly a layperson without any legal training. I
encourage everybody to seek competent legal counsel rather than
relying on usenet newsgroups.

Please visit my new FAQ at http://www.kkeane.com (always under
construction)

My email address in usenet posts is now invalid for Spam protection.
See my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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Jozef

"Ingo Pakleppa (see Web site for email)" <[email protected]> wrote in message
news:Z0NOd.57346
    > Unfortunately, no. Only processing delays of the I-140 count. Delays
    > during I-485 processing don't, regardless of whether it's a processing
    > delay or a delay because of the quota. That was the gist of Jonathan's
    > thought: during concurrent filing, often - not always - the I-140 and
    > the I-485 are adjudicated together. That way, *if* a visa number was
    > available at the time of filing, and *if* the applicant was lucky enough
    > to remember to file concurrently, then the I-485 processing time would
    > effectively be zero, and the child wouldn't age out. It's a good thought
    > and would indeed work in case of retrogression.

Interesting!
As an example, assuming that the I-140 and I-485 were filed concurrently the
day before a child's 21st birthday, and it took exactly 1 year for the I-140
to be approved, that would mean that he/she would age out the day after the
I-485 has been pending an additional year, right?

Just trying to come up with some clear rules here! :)

Thanks,

Jozef

Ingo Pakleppa

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1

Jozef wrote:
    | "Ingo Pakleppa (see Web site for email)" <[email protected]> wrote in
message
    | news:Z0NOd.57346
    |
    |>Unfortunately, no. Only processing delays of the I-140 count. Delays
    |>during I-485 processing don't, regardless of whether it's a processing
    |>delay or a delay because of the quota. That was the gist of Jonathan's
    |>thought: during concurrent filing, often - not always - the I-140 and
    |>the I-485 are adjudicated together. That way, *if* a visa number was
    |>available at the time of filing, and *if* the applicant was lucky enough
    |>to remember to file concurrently, then the I-485 processing time would
    |>effectively be zero, and the child wouldn't age out. It's a good thought
    |>and would indeed work in case of retrogression.
    |
    |
    | Interesting!
    | As an example, assuming that the I-140 and I-485 were filed
concurrently the
    | day before a child's 21st birthday, and it took exactly 1 year for the
I-140
    | to be approved, that would mean that he/she would age out the day
after the
    | I-485 has been pending an additional year, right?

No, I don't think so. He/she would age out the day after the I-140 was
approved. So if they are *approved* concurrently, the child would be
fine. Otherwise, for all intents and purposes, the child is aged out :-(

- --
Remember, I am strictly a layperson without any legal training. I
encourage everybody to seek competent legal counsel rather than
relying on usenet newsgroups.

Please visit my new FAQ at http://www.kkeane.com (always under
construction)

My email address in usenet posts is now invalid for Spam protection.
See my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.
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Jozef

"Jozef" <jozef.*take this out*[email protected]> wrote in message
news:AwTOd.24669$uc.20694@trnddc09...
    > "Ingo Pakleppa (see Web site for email)" <[email protected]> wrote in message
    > news:Z0NOd.57346
    >> Unfortunately, no. Only processing delays of the I-140 count. Delays
    >> during I-485 processing don't, regardless of whether it's a processing
    >> delay or a delay because of the quota. That was the gist of Jonathan's
    >> thought: during concurrent filing, often - not always - the I-140 and
    >> the I-485 are adjudicated together. That way, *if* a visa number was
    >> available at the time of filing, and *if* the applicant was lucky enough
    >> to remember to file concurrently, then the I-485 processing time would
    >> effectively be zero, and the child wouldn't age out. It's a good thought
    >> and would indeed work in case of retrogression.
    > Interesting!
    > As an example, assuming that the I-140 and I-485 were filed concurrently
    > the day before a child's 21st birthday, and it took exactly 1 year for the
    > I-140 to be approved, that would mean that he/she would age out the day
    > after the I-485 has been pending an additional year, right?

Wrong wrong...
The child would continue to be ok, no matter how long the I-485 took to
process, since his/her age was locked in when the I-140 was filed, because
at that time the applicable visa category was current.
Provided of course, that a visa number continues to be available, i.e. the
priority date of the applicable visa category does not retrogress beyond the
date the I-140 (or LC if applicable) was filed!

Jozef