Family Based Immigration
Whether it's a matter of a US citizen petitioning for their siblings or for their elderly parents abroad, we handle the whole spectrum of cases and some of the inherent complications that can arise if cases aren't timed or prepared properly.
Green Cards for Parents of US Citizens
US citizens are entitled to petition for Permanent Resident status for their parents as immediate relatives. We have worked with many petitioners who wish to bring their elderly parents from abroad and we have successfully guided the entire process which is why the following considerations are important:
Have any of the foreign national parents overstayed on previous visits to the US?
How soon the foreign national parents can tie up loose ends in their home country;
Do the foreign national parents have a visitor’s visa?
Can the foreign national parents stay in the US for at least six months without leaving the US?
The above factors are the kinds of issues that may affect whether the foreign national parents should go through US Consulate processing in their home countries or adjustment status in the US.
We take a special approach to these cases as it's a privilege for us to be part of this journey.
Green Cards for Siblings of US Citizens
US citizens are permitted to petition for their siblings abroad, although a limited number of these visas are available each year, which is why the wait is so long for foreign national siblings to receive their Green Card. One generous feature of this right to sponsor siblings is that the sibling may bring with them their spouse and their children under 21. Our advice is to always get this process started as soon as possible due to the current political climate and the fact that there is always a threat of the dependent children of the sibling aging out as discussed below.
Child Status Protection Act (CSPA)
In immigration law, a person's 21st birthday is a very important event. The definition of child in the Immigration Act is a person under 21 years of age. The event of turning 21 moves a person out of the visa categories with a shorter waiting period, and into the categories that require a longer wait, since they are no longer a "child", although they are, of course still a son or daughter. Since turning 21 results in moving out of the quicker paths to a Green Card, this event is often called "aging out."
The Child Status Protection Act (CSPA) protects some children from aging out. In CSPA the government has listed some special circumstances in which a person's age, for immigration purposes, is not the same as their actual age. In these circumstances, even after a person's 21st birthday, for immigration purposes, they are treated as if they are still under age 21.
One of the times the CSPA helps is when parents who are either Green Card holders or US citizens are trying to help their children get Green Cards. CSPA also helps when a visa petition is filed for a parent.
For example, when a US citizen files a visa petition for their sibling, immigration law says the sibling’s spouse, and children who are under 21, are eligible for Green Cards at the same time as the sibling. Unfortunately, the visa category for siblings of US citizens has a very long wait time. Due to this long wait, a lot of children who are under 21 when the visa is filed for their parent(s) "age out" before visas become available for their family. In some of these cases, depending on the timing, a young adult's age for immigration purposes will remain below 21, allowing them to get Green Cards at the same time as the rest of their immediate family.
The law is complicated and every case is different. If you think CSPA might apply to your case, you may want to talk to an immigration attorney. The attorney will be able to explain how the law applies to your specific circumstances.
We have a proven record of success and work with a dedicated team of financial and legal experts who help our clients make the best choices for them and their families.
How CSPA Works for sons and daughters of US citizens.
Visa petition filed after the parent became a US citizen
If a father or mother becomes a US citizen through naturalization, and they have filed a visa petition for their son or daughter after the parent became a US citizen, then the son's or daughter's age for immigration purposes is their age on the date the parent filed the petition. The son's or daughter's age for immigration purposes doesn't change after that date.
Normally, if a US citizen petitions for their children who are under the age of 21, those children are immediately eligible for a visa as long as they are still under 21 when they receive their Green Card. But getting a Green Card can actually take a while even after the petition is filed. Because of the CSPA, children are still regarded as under 21, for immigration purposes, if they "age out" between the date the petition is filed and when they receive their Green Card.
For example, if a father becomes a US citizen and files a visa petition for his daughter when the daughter is 20 years old, the daughter remains eligible for a visa even if she turns 21 before her visa or adjustment application is approved. Even if the daughter waits to finish her education in her home country and doesn't end up applying for an immigrant visa until she is 24, she is still is under 21 for immigration purposes.
Visa petition filed before the parent became a US citizen
Similarly, if a father or mother filed a visa petition for their son or daughter and then later became a US citizen, then the son's or daughter's age for immigration purposes is their age on the date their parent became a US citizen.
For example, if a father gets his Green Card while his daughter is 15, files a petition for his daughter as soon as he gets his Green Card, and becomes a US citizen when his daughter is 20, the daughter is immediately eligible for a visa even if she turns 21 before her visa or adjustment application is approved. Her age, for immigration purposes, remains her age on the day her father became a citizen.
However, if the father becomes a citizen after his daughter's 21st birthday, CSPA doesn't help. Even if the visa petition was filed BEFORE her 21st birthday, the important date is the day her father became a citizen. In this case, her age for immigration purposes would be the same as her actual age.
What can I do?
If you are a parent hoping to get your son or daughter a Green Card through their relationship to you, there are a few things you can do. First, check to see if your children are already citizens by operation of law. The law about when children become citizens is complex and you should check with an immigration attorney. Second, after you get your Green Card, as soon as possible thereafter, file a petition for them. You should try to do this before your child turns 21. Third, if possible, become a US citizen before your children turn 21.
All these steps can help you preserve the ability of your foreign-born children to get their Green Cards as quickly as possible. Doing this is not a guarantee of success though. Every case is different and if you have questions, you should talk to an immigration attorney.
How CSPA Works for Family-Based Preference Relatives and Derivative Beneficiaries
USCIS takes a long time to process visa petitions. Some petitions take years to get processed. Then, for many people, there is more waiting. When a visa petition is approved, USCIS determines what immigration category the applicant benefiting from the petition falls into. Many of these categories have many applicants and very few visas available, which result in long wait times.
One of the major goals of the CSPA is to help young adults affected by these long processing and wait times for visas.
Under immigration law, when a petition is filed for a parent, their children who are under age 21 are automatically included in the petition. In the usual type of case, the children are still under 21 when their family becomes eligible for visas and the children are therefore eligible to receive visas at the same time as everyone else in their family. CSPA helps some of the young adults who turn 21 between the time the visa is filed and the time their family becomes eligible to receive visas. Before CSPA, these children did not get Green Cards with the rest of their family because they would have "aged-out." The CSPA changed that.
To do keep children from aging out because of processing delays, the government doesn't count the time the visa petition is waiting for approval.
Here is a basic example. If a young adult is 23 when visas become available for their family, but the visa petition has been pending for three years, the young adult is regarded as being only 20 years of age, for immigration purposes. The young adult has not aged-out and therefore is eligible to receive a visa along with the rest of their family.