Question: My mother is a lawful permanent resident and she petitioned my father. However, by time the visa number became current, I had aged out and was over 21 years old. Is there anything that I can do?
Answer: In this particular case, you are able to fall under what is known as the Child Status Protection Act. This particular act has several useful provisions, but one such provision is meant for a case such as yours that you have waited for years for the visa number to become current and unfortunately aged out.
Normally, prior to the issuance of the CSPA, the following would have happened: Your father who was a Lawful Permanent Resident, petitions your mother. Since this is a second preference petition, you would then not need a separate petition because you were a derivative beneficiary. Therefore, as soon as the visa number was current, you as a derivative beneficiary and under 21, would be able to obtain your residency as well. However, once you aged out, meaning once you have more than 21 years of age, you would have to be petitioned again by either your now lawful permanent resident mother, or lawful permanent resident father.
Question: What is the law under the CSPA?
Answer: Here in this case, there is actually not even a need to file another I-130 petition. The law under the CSPA states that you can now proceed under what can be referred to as a fictitious I-130 from your father. What happens is the following: 1. A fictitious I-130 is deemed to be filed from your father to you as of the date you turned 21 years old. 2. The key here is that the CSPA allows usage of the old priority date from your father’s petition to you. Therefore, if your father’s priority date to your mother was in 1996, that means that his fictitious I-130 will have the priority date of 1996 under the appropriate category. Thus, if he is a Lawful Permanent Resident, and would petition you as a son/daughter over the age of 21, then the priority date would not be 2011 for example, but 1996. Therefore, you have just saved 15 years of waiting. It is a very useful provision of the CSPA if you know how to use it.
Thus, if in your case, the priority date is current at the time this fictitious I-130 is made, you can immediately adjust status or consulate process to obtain your residency. While it is unfortunate that you have aged out, if you use the CSPA properly and submit what is needed, then it is not as bad as you think and you can get your lawful permanent residency 10-15 years earlier than you otherwise be able to do under the normal family petition.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
