Immigration Questions: (954) 382-5378
Immigration News & Updates eNewsletter
POSTING DATE: NOVEMBER 16, 2015
Immigration News & Updates eNewsletter © 2011 - 2015
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Questions & Answers
Question: I’m a Green Card holder and filed for my daughter to immigrate to the U.S. when she was 19. The case was approved and I paid the bills from the National Visa Center last month. But my daughter just turned age 21 and now I’m afraid that when she goes to her interview they will deny her because she is not eligible anymore as a child. I am considering getting my Citizenship, but I really don’t know if that will help. Can you please help me?
Answer: The issue of children “aging out” from being a minor to an adult is very important, especially as it concerns children of U.S. Residents and those immigrating as “Derivatives” along with parents based upon an I-130 filed for their parent by a U.S. relative. First, its important to understand that the law treats children of Residents different than children of U.S. Citizens when it comes to “ageing out”. “Aging Out” means that a child goes from a minor to an adult at age 21.
When a U.S. Citizen files an I-130 for a minor child under age 21, the age of the child is “fixed” on the date the USCIS receives the application and that child remains a minor for immigration purposes, no matter how long it takes for the child to immigrate, or how old they actually are at the time of immigrating. In contrast, when a Resident files an I-130 for a minor child, the age of the child is not fixed and there is a risk of the child “aging out” by turning age 21 or older, thereby disqualifying the child as a minor and causing the child to change from the F2A Immigration category to the F2B, which puts the child in a much longer waiting line for a visa, taking many more years to immigrate.
However, under a law called the “Child Status Protection Act”, the time that the I-130 petition was pending with the USCIS before it was approved (processing time) can be subtracted from the child’s actual age at the time the Immigrant Visa becomes available, to technically reduce the child’s age below 21, thereby allowing them to continue to be a “minor”, at least for immigration purposes. So, if an I-130 petition is filed on Jan 1, 2011 and it is not approved until Jan 1, 2012, an entire year can be subtracted from a child’s age, thus allowing them to immigrate as a minor child.
The only time this is not possible, is when a Resident innocently Naturalizes after the child turns age 21. In these cases, the USCIS processing time cannot be subtracted from the child’s age, since once a Resident becomes a U.S. Citizen, the child’s age is “fixed” as of that time. So, if a child is age 21, no time can be deducted and the child become ineligible to immigrate as a minor. Many parents make great efforts to get their U.S. Citizenship once a child is nearing age 21, fearful that their minor child will “age out”, only to find out that instead, it was their Naturalization that caused the minor child to age out. Of course it should not be so complicated, but unfortunately misunderstandings of the “ins & outs” of Immigration law can sometimes lead to heartbreaking results. With all this said, the best thing that a parent can do is get professional advice before taking action.
In this case, Naturalization is the worst thing you could do. Most likely, the I-130 was processing with the USCIS for plenty of time before approval, so all that time can be subtracted from your daughter’s age and she will still be eligible to immigrate as a minor. Once the National Visa Center begins processing your daughter’s case, it only takes another several months for the Consular Appointment, as long as all the required documentation is prepared and submitted properly. Let me know if you need assistance in this phase of your daughter’s Immigration process.
You can find out more about “Age out” issued and how the “Child Status Protection Act”
may benefit your minor child by calling our office at: (954) 382-5378
USCIS Invites You To Its Upcoming Teleconference
on the Affidavits of Support
The USCIS has released a new “Welcome to the United States: A Guide for New Immigrants” which provides practical tips and information for new immigrants. The guide covers various areas including finding a place to live, applying for a Social Security number and how the U.S. government works and is available in 14 languages.
Register For the Teleconference:
Immigration How To:
How Do I Know What An Affidavit of Support Is and Do I Need One?
This Week's Immigration News
What the Recent Appeals Court Decision For DACA & DAPA
Means For Immigrants
The disappointing decision issued by the Fifth Circuit Court of Appeals last week ruling against lifting the “hold” on President Obama’s Executive Actions struck yet another blow to an estimated 5 million immigrants hoping to finally get relief under the DAPA for Parents of Citizens and Residents and expansion of DACA for Dreamers programs.
And with Congressional inaction on Immigration assured until at least 2017, many Immigrants have become hopeless, wondering if their plight will ever change.
However it’s important to understand that this decision is not the final word on the President’s Immigration Executive Actions, since a favorable ruling by the Supreme Court next Spring or Summer will mean that it will be very difficult for any future Republican President or Congress to cancel the program. And the chances of Obama’s success before the Supreme Court are good, since every U.S. President since 1956 has used executive prerogative to grant temporary relief to Immigrants and the Supreme Court has repeatedly held in favor of Presidential executive authority. As a result, many experts believe that the decision issued by the Fifth Circuit’s decision will not hold up with the Supreme Court.
With that said, Immigrants need not be too disheartened, since there is still light at the end of the tunnel and while it takes time, as the saying goes, “good things come to those who wait”. Stay tuned.
Helpful Immigration Tips You Can Use...
Stay Informed - Sign-up For USCIS E-Notification & Email Updates
On Your Immigration Case
To request e-notification, download and complete form G-1145 and mail along with all Immigration applications. Once you receive your case number, go to the USCIS website and sign up for Email Status updates on your case through the USCIS My Case Status program. Once you register and enter your case number(s), the USICS will automatically email you notifications and updates on any actions take on your case so that you are better informed about your case status.
For instance, once your Immigration application is filed, the USCIS may issue you a letter requesting more evidence in order to continue processing the case. If you are registered to receive case status updates, you will receive an email notification that the USCIS has issued the request, which helps you to be aware that you should be receiving the request by mail soon. If you have not received the request, you can then make further inquiries. Similarly, once you respond to the USCIS request, you will receive an updated email notification that they have received your documentation. It’s a great way to stay informed and keep up to date on the status of your case as it is being processed.
The USCIS now offers several ways for Applicants to get updates on newly filed and pending Immigration cases. Immigrants and Sponsors filing Immigration applications with the USCIS can now sign-up to receive text messages and email E-notifications confirming application receipt by the USCIS, along with the case receipt number(s). The receipt number allows individuals to track the status of their case online. E-notifications are issued within 24 hours after the USCIS receives the application.
Affidavits of Support must always be filed by the U.S. citizen or Resident for their immigrating family member(s), even if they do not meet the minimum financial guidelines. In such cases, a Joint-Sponsor who does meet the financial requirements can provide an additional Affidavits of Support and will be bound by the same obligations. Joint-Sponsors must be either a Resident or U.S. Citizen, but are not required to be a family member. The sponsor’s obligation lasts until the immigrant either becomes a U.S. citizen, has earned 40 work quarters credited toward Social Security (about ten years of work), dies, or permanently leaves the United States. If the immigrant has already been living in the U.S. and worked legally, earning work credits before applying for the green card, those count toward the 40.
Minor Children (under age 18) of U.S. Citizens who automatically obtain U.S. Citizen upon being granted Residency are not required to have an Affidavit filed on their behalf, but must file a waiver form instead.
In order to sponsor a family member to immigrate to the U.S. to become a Resident (receive a Green Card), all U.S. citizens and Residents must prove that they have the ability to support their foreign relative financially for a period of years. This is required to show the U.S. government that the family member immigrating is not someone likely to immigrate to the U.S. then go collect government assistance (often called "welfare").
The Affidavit is a legally binding promise by the Sponsor that they will take financial responsibility if the need arises so that their relative will not collect government assistance and if that does occur, the Sponsor will be responsible to reimburse any government agencies from which their immigrant family received financial assistance.