1. Can My Sister’s Child Immigrate Under the Child Status Protection Act?
I petitioned for my sister (U. S. citizen for sibling) with a priority date of March 31, 2006. That date just became available to immigrate, and she and her husband are scheduled for interview at the American consulate. However, the notice did not include their daughter who was born on January 2, 1995. She is 24 years old, and we understand that the time that the I-130 petition was pending is given as a credit to her age. The petition was approved on April 15, 2009. Looking at the Department of State visa bulletin, our priority date was reached under the dates of filing chart in January 2019. We went to a consultant who told us that the child should be able to immigrate, so we do not understand what is going on now. Can you explain?
Mr. Lee answers,
Unfortunately the Department of State and U.S.C.I.S. made a decision to only stop counting and “freeze” a child’s age when the priority date is reached on the final action chart (chart A), and not the dates of filing chart (chart B). The consultant was looking at chart B and not chart A which only became open to your sister’s priority date on June 1, 2019. Your sister’s daughter was over the age of 21 by 3 years and 149 days as of June 1, 2019. She is given credit for the period of time that the I-130 pended at U.S.C.I.S., which was 3 years and 103 days. Thus because the priority date became available 46 days after she turned 21 under CSPA counting, she is unfortunately not able to immigrate with her parents. Lacking any other way to come to the U. S., her parents can immigrate and then immediately file petition(s) for her under the F-2B category for an unmarried son or daughter of a lawful permanent resident. The waiting time is currently approximately 6 years.
2. Failed the Marriage Interview – What Are My Chances of Appeal?
I and my husband went through our marriage interview at U.S.C.I.S. with our lawyer, and we just received a denial. We think it was unfair because the immigration officer picked on small things that either I or my husband could not specifically remember. What are our chances if we appeal the decision?
Mr. Lee answers,
You should consult with the lawyer who was with you at the time of the marriage interview. Usually the attorney will have written down all the questions and answers that both you and your husband provided and can assess the effect of any differences in your answers and their significance. A long time U.S.C.I.S. section chief in charge of marriage interviews once spoke at an immigration lawyers’ meeting at which he cheerfully stated that he would be hard-pressed to pass a marriage interview with some of his officers. The rule of reason should apply, and if your attorney believes that the discrepancies were minor or explainable, you should go forward with the appeal.
3. Applying for H-1B and Wanting to Get Into F-1 Higher Education Program, What Can I Do?
I have optional practical training that ends on July 30, 2019. My company applied for my H-1B, and I received the word that I was selected, but I am not sure that it will be approved. I also want to take a higher degree program and want to transfer into that. What effect will that have if the H-1B papers are approved? Does that nullify my H-1B?
Mr. Lee answers,
In order for you to take the higher degree program, you do not have to take another action with U.S.C.I.S. as you are already in F-1 status under your optional practical training. U.S.C.I.S. operates under the last action rule, and if its last action is the approval of the H-1B petition, that would supersede the F-1 status and you would be automatically converted to H-1B.
4. We Have the Choice of My Wife Applying for Labor Certification Green Card and Me Applying for Political Asylum – What Road Should We Take?
I came into the U. S. under a H-4 visa from China and my wife is presently under H-1B and the company is offering to sponsor. But that is a long case according to the lawyer which may take 3 to 5 years because of the China quota on visas, and I am thinking of applying for political asylum. When I was 10 years old, I was in Beijing and a military truck ran over my leg near Tiananmen Square in June 1989. Also the local birth control authorities wrecked our house in 1995 because my sister would not come out of hiding when she was pregnant with the second child. Should I do that or ask my wife to do the labor case?
Mr. Lee answers,
Your wife should do the employment based case as long as the company is viable and capable of sponsoring her for the green card. The chances of the employment based case being approved as opposed to the asylum case are much greater. I doubt that the circumstances that you describe for your political asylum case would allow a grant of asylum as you were likely not an active protester at the age of 10 near Tiananmen Sq. and the target of the birth control authorities was your sister and not you. Under H-4 status, you are not allowed to work unless your wife has an I-140 employment preference classification approved or is eligible to file for time over the six-year limit on H-1B visas. If you are concerned about ability to work, you can try to apply for H-1B status if qualified and a sponsoring organization is available (next April if a cap employer or at any time if the employer is cap-exempt) or attempt to change your status to F-1 student under which you may be able to work part-time on campus, or at a later point request work authorization from the school (curricular practical training), or even optional practical training from U.S.C.I.S.