Legal Reasons a U.S. Immigrant May Be Deported

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1 Legal Reasons a U.S. Immigrant May Be Deported The U.S. immigration laws contain numerous grounds upon which non-citizens, including green card holders, may be deported back to their country of origin. There are several reasons for the U.S. immigration authorities to deport an immigrant that is, send the person back to his or her country of origin. One of the most obvious is that the immigrant simply did not have a right to be in the United States to begin with, having crossed the border or otherwise entered illegally, or stayed beyond the departure date required by his or her visa. However, even people who have a temporary or permanent right to remain in the United States, such as with an unexpired visa or a Green Card, can be removed or deported. Here are some of the common causes of deportation. Failure to Obey the Terms of Your Visa or Otherwise Maintain Your Status If you are in the U.S. as a nonimmigrant (most likely with a visa), various conditions apply to your stay. For example, if you re a tourist, you re not allowed to work. If you fail to abide by these conditions and maintain your nonimmigrant status, you become deportable. Failure to Advise USCIS of Change of

2 Address It sounds harsh, but it s a crime for immigrants not to submit immediate notifications to U.S. Citizenship and Immigration Services (USCIS) of their changes of address. You ve got ten days. Use the Online Change of Address form on the USCIS website. Commission of a Crime A number of crimes though not all can result in an immigrant s becoming deportable from the United States. The full list is at Section 237(a) of the Immigration and Nationality Act, or I.N.A. For example, crimes that can get a green card holder or nonimmigrant deported include alien smuggling, document fraud, domestic violence, crimes of moral turpitude, drug or controlled substance offenses firearms trafficking, money laundering, fraud, espionage, sabotage, terrorism, and of course the classic serious crimes such as rape, murder, and any other aggravated felonies. Be aware that, if you are convicted of a crime, the court is not likely to label it a crime of moral turpitude or an aggravated felony. You may simply be told that the crime is classified as, for example, a misdemeanor in your state. However, the immigration authorities will make their own judgment about how the crime is classified for immigration law purposes, with the result that certain misdemeanors can, in fact, make you deportable. Violation of Immigration Laws Someone who violates the immigration laws by, for example, participating in a fraudulent marriage or helping smuggle other aliens into the United States, may be found deportable.

3 Receiving Public Assistance Anyone who has received a green card knows that proving that you would not become a public charge that is, have to rely on need-based government assistance was an important part of proving that you were not inadmissible to the United States and get your green card. The immigration laws follow this up with the statement that, Any alien who, within five years after the date of entry; has become a public charge from causes not affirmatively shown to have arisen since entry is deportable. (See Section 237(a)(5) of the I.N.A.) If you have a green card, your petitioner, and any other financial sponsor, are supposed to follow through with their promises to support you (and can also be asked to reimburse any agencies from which the immigrant received public assistance.) Getting Help If you are facing deportation due to one of the above mentioned reasons or for any other reason, consider speaking with an immigration attorney as soon as possible. Comments or questions are welcome. * indicates required field Name:* * Subject:* Message:* Submit

4 Green Cards for Your Family: Sponsorship Categories Can relatives come to the U.S.? It depends on how the family member is related. Many people in the United States have family members living in other countries, and wonder whether they can bring them here. It s a myth that if one immigrant settles in the United States, that one can get green cards (permanent residence) for the whole extended family, and so on. The truth is both more limited and more complex. Who You Can Help Immigrate You can petition to bring family members to the United States (often called sponsoring them) only if you are a U.S. citizen or a permanent resident (green card holder). Even then, you can bring in only those family members listed on the chart below. Before reading the chart, see below the explanations of the meanings of immediate relative and preference relative. Immediate Relative: Although the common meaning of this is a close family relation, it has a more specific meaning in immigration law. Immediate relatives are a category of prospective immigrants who include a U.S. citizen s spouse, minor children (under the age of 21), and parents (so long as the citizen is at least 21 years old). Immediate relatives have an immediate right to apply for U.S. permanent residence

5 (assuming their U.S. family member agrees to start the process on their behalf) unlike more distant relatives, they aren t subject to yearly limits on the numbers who can apply for permanent residence. Preference Relative: An immigration term for certain people who may be eligible for U.S. permanent residence (a green card ) based on family relationships. Preference relatives include the married children of U.S. citizens, children over 21 of U.S. citizens, the spouses or children of U.S. green card holders, and brothers and sisters of U.S. citizens where the U.S. citizen is at least 21 years old. Preference relatives must usually wait to get a green card, because only around 480,000 are available to them in total each year. They must wait in line based on their priority date, which is the date when their U.S. citizen or permanent resident petitioner first filed a visa petition indicating willingness to sponsor the immigrant. Who Can Sponsor Who

6 Who You Are Immigrants You Can Petition The Immigrant s Category U.S. citizen age 21 or older U.S. citizen (at least age 18, for financial sponsorship purposes) U.S. citizen (at least age 18, for financial sponsorship purposes) U.S. citizen U.S. citizen age 21 or older U.S. permanent resident U.S. permanent resident Parents Spouse Minor, unmarried children Married children or adult children Brothers and sisters Unmarried children Spouse Immediate relative Immediate relative Immediate relative Preference relative (1st preference) Preference relative (4th preference) Preference relative (2nd preference 2A or 2B) Preference relative (2nd preference) Notice who is not on this list: grandparents, cousins, aunts,

7 uncles, parents-in-law, and other extended family members. However, if allowed to immigrate to the United States, most of the people on the above list will be permitted to bring their own spouses and children with them. And it is true that once someone has a green card, they can sponsor other people on the list. How Long Must Relatives Wait? Immediate relatives can get green cards without worrying about waiting periods or numerical limits. Preference relatives may have to wait between approximately four and 23 years before being allowed to apply for their visa or green card. Also, only a certain percentage of the green cards go to any one country each year. That means if a particularly high number of people from certain countries submit petitions as is often the case with India, Mexico, China, and the Philippines their family members end up waiting even longer than others. Because of the annual limits on how many green cards (immigrant visas) are given out, and the unpredictability of how many people submit petitions each year, no one can say exactly how long each applicant will wait. As a general rule, applicants in higher preference categories wait less time. The average wait these days from most countries (excluding India, Mexico, China, the Dominican Republic and the Philippines) is as follows: Current Average Waiting Period

8 Type of Preference Relative Adult, unmarried children of U.S. citizens Spouses or children of permanent residents Married children of U.S. citizens Brothers and sisters of U.S. citizens Preference Category First preference Second preference Third preference Fourth preference Average Wait Seven years Four years for spouses and for minor children (2A); eight years for adult children age 21 or over (2B) Ten years Eleven years The longest waits are endured by siblings of U.S. citizens (4th preference) from the Philippines currently a staggering 23 years. How to Start the Application Process The family member who you will sponsor will have to go through a multi-step application process. It s your job as a U.S. citizen or green card holder to start the process, by submitting a visa petition. Your family member can t enter the U.S. until both the petition and subsequent applications have been approved. Sponsor vs. Petitioner Although the term commonly used to describe a U.S. citizen or resident who helps someone immigrate is sponsor, this isn t the technical term. You petition for your family member, so you re a petitioner. Your incoming family member is called a beneficiary.

9 There are some important steps you can take to speed up your family member s progress toward a green card. Apply for U.S. Citizenship If you are a U.S. permanent resident, not a citizen, you can help by applying for citizenship as soon as you re eligible. That s usually five years after getting your green card. For more information, see my article Applying for U.S. Citizenship. As soon as you re a citizen, your family members can move to a speedier immigration category. For example, your spouse would become an immediate relative, and could apply for a green card right away. Your parents would go from having no immigration rights to being immediate relatives, and your children would become immediate relatives or move to higher preference categories, depending on their age and whether they are married. Warn Your Waiting Children Not to Marry Children who marry have it tough when it comes to immigrating. If you re a permanent resident and you have petitioned for an unmarried child, that child s marriage will destroy the right to immigrate under your petition. If you re a U.S. citizen and your child marries, that will drop the child down into the third preference category, meaning a long wait. Make sure your children know these risks before they marry. It won t matter that they were unmarried when you started the immigration process for them; they have to be unmarried when they pick up their immigrant visa or green card. Have Multiple U.S. Family Members Sponsor the Same Immigrant Hopeful immigrants (beneficiaries) shouldn t pin all of their hopes on one petitioner. If something goes wrong for example, the petitioner dies or divorces the beneficiary

10 before the beneficiary gets a green card the opportunity is, in most cases, lost. There is no harm in having more than one U.S. citizen or resident file visa petitions for a waiting immigrant. For instance, both parents could file for a child, to insure against the death of one parent. Or a person married to a permanent resident could have both the resident and their U.S. citizen parent file a visa petition for them. Comments or questions are welcome. * indicates required field Name:* * Subject:* Message:* Submit Who Can Apply for U.S. Citizenship Find out who is eligible for U.S.

11 citizenship and how to apply. U.S. citizenship gives a person as many rights as the U.S. has to offer; for example, the right to vote, petition for family members to immigrate, and live abroad without losing the right to return. For these reasons, citizenship is not easily obtained. To become a U.S. citizen through the process known as naturalization, you must first have a green card (permanent residence) and then meet other requirements, listed below. There are only a few rare exceptions in which a person goes straight from having no U.S. status to getting U.S. citizenship; some are discussed in my article U.S. Citizenship by Birth or Through Parents. The Eligibility Criteria If you are interested in applying for U.S. citizenship, first make sure that all of the following apply to you: you have lived in the United States as a lawful permanent resident for at least five years (with exceptions for refugees, people who get their green card through asylum, spouses of U.S. citizens, and U.S. military personnel) you have been physically present in the United States for at least half of the last five years you have lived in the district or state where you are filing your application for at least three months you have not spent more than a year outside the United States you have not made your primary home in another country you are at least 18 years old you have good moral character you are able to speak, read, and write in English you are able to pass a test covering U.S. history and government (based on questions provided by USCIS), and

12 you are willing to swear that you believe in the principles of the U.S. Constitution and will be loyal to the United States. Applying for citizenship opens your whole immigration history to review. U.S. Citizenship and Immigration Services (USCIS) will carefully investigate your background. If it discovers something wrong for example, that you used fraud to get your green card or abandoned your residency by making your home outside the United States it can strip you of your green card and send you out of the country. The Application Process You ll need to complete a citizenship application on USCIS Form N-400 and send it in with a copy of your green card, the required photos, and the appropriate fee. After filing your application, you will probably wait for many months, depending on your local USCIS office. Then you will be called in for a fingerprint appointment, and later an interview appointment. At the interview, a USCIS officer will test your English language ability (unless you are over 50 and fit within an exception) and your knowledge of U.S. history and government. Applicants who are disabled can ask for accommodations at the interview, such as a sign language interpreter or wheelchair accessibility. If all goes well at the interview, you ll receive an appointment for your swearing-in ceremony. At that time, you actually become a citizen, and receive a certificate of naturalization to prove it. As a citizen, you can petition to have close family members join you in the United States.

13 Comments or questions are welcome. * indicates required field Name:* * Subject:* Message:* Submit Obtaining Proof of U.S. Citizenship If you have a right to U.S. citizenship, what s next? If you believe you are a U.S. citizen, you ll want a document to prove it. If you were born on U.S. soil and there is a record of your birth, a standard U.S. birth certificate issued by a state government is your primary proof of U.S. citizenship. (Birth certificates issued by hospitals are not official records and do not serve as proof of citizenship.) If you were naturalized in the United States, you will have a naturalization certificate. However, if your birth took place outside the territorial

14 United States and you have a right to U.S. citizenship through your parents, you will not have either of these documents. ( Such rights are discussed in detail in the article U.S. Citizenship by Birth or Through Parents.) In this case, you will have to apply for either a U.S. passport or a certificate of citizenship. U.S. Passports If you were born abroad to U.S. citizen parents, you can apply for a U.S. passport in the same way as someone born in the United States. However, you will have the added requirement of establishing your citizenship claim. The evidence you ll need to have on hand may include: proof of your parents U.S. citizenship evidence that your parents complied with any applicable U.S. residency requirements, and evidence that you fulfilled any necessary residency requirements, or that you were excused from doing so because you didn t know about the law. Evidence may take the form of birth or citizenship records, work or tax records, or affidavits from you (and perhaps even from your parents or grandparents), for example, explaining why you were unaware of your claim to U.S. citizenship. Passports are available from passport offices in the United States or at U.S. consulates abroad, but experience shows that you have a better chance of succeeding by applying to a U.S. consulate. Certificates of Citizenship You can also get proof of your citizenship by applying for a certificate of citizenship from U.S. Citizenship and Immigration Services (USCIS, formerly called the INS). Anyone with a claim to U.S. citizenship can apply for a certificate

15 of citizenship. Citizenship certificates are issued only by offices of USCIS located inside the United States. In most cases it is more difficult to prove your citizenship through a certificate of citizenship application than by applying for a U.S. passport, mostly because it takes more time. (In some of the busier USCIS offices, it can take over a year to obtain a certificate of citizenship.) However, if your U.S. citizenship was obtained automatically through the naturalization of a parent, a certificate of citizenship application is your easiest and best choice, because the evidence needed to prove your claim is usually obvious and easy to acquire. Evidence of your claim to U.S. citizenship should include your parents birth certificates, marriage certificates, and naturalization certificates. You will also need your birth certificate, marriage certificate, or divorce decree to prove what your name is and to document any changes to your name. Certificates of Consular Registration of Birth If you were born outside the United States and your parents were U.S. citizens at the time, they may have registered your birth with a U.S. consulate. If they did so within five years of your birth, they would have been issued what is called a Consular Registration of Birth Abroad. The consular registration is conclusive proof of U.S. citizenship. But, if your parents did not take the steps to register your birth with the consulate before you turned five years of age, there is no way of obtaining one now. Also, there is no way to obtain duplicates if your parents lost the original and any copies they received at the time of your birth. You will have to apply for a passport or certificate of citizenship using the procedures outlined above.

16 Comments or questions are welcome. * indicates required field Name:* * Subject:* Message:* Submit U.S. Citizenship by Birth or Through Parents You may already be a U.S. citizen by birth or naturalization and not know it. U.S. citizenship can be obtained in one of four ways: birth in the United States or its territories birth to U.S. citizen parents (called acquisition of citizenship) naturalization (obtaining citizenship after an application and exam), or naturalization of one s parents (called derivation of citizenship). Some people are already U.S. citizens and don t know it. Most

17 of these people fall into one of three groups: People born in the United States who have lived most of their lives in other countries. If you fall into this category, you may mistakenly believe that your long absence from the country, plus voting or military activities elsewhere, have stripped you of U.S. citizenship. This is not the case. People who have U.S. citizens in their direct line of ancestry. If your parents or grandparents were U.S. citizens, you may not realize that U.S. citizenship has been passed down the line, even if you were born elsewhere and your parents or grandparents haven t lived in the United States for a long time. Children of naturalized U.S. citizens. When parents become naturalized U.S. citizens, their minor children with green cards gain U.S. citizenship automatically. (Children under the age of 18 cannot normally apply to become naturalized U.S. citizens.) You will, however, need to do some research to establish your rights. Here, we ll explore each of the above three possibilities in turn. Birth in the United States A child born on American soil automatically gets U.S. citizenship, unless the child is born to a foreign government official who is in the United States as a recognized diplomat. Children born in certain U.S. territories Puerto RICO, the Virgin Islands, and Guam may also acquire U.S. citizenship. For details, see Title 8 of the U.S. Code, available at Anyone born with U.S. citizenship retains it for life unless he or she deliberately gives it up for example, by filing an oath of renunciation.

18 Birth to U.S. Citizen Parents ( Acquisition ) In many circumstances, even though a child is born outside the United States, if at least one parent was a U.S. citizen at the time of the child s birth, the child automatically acquires citizenship. When this child marries and has children, those children may also acquire U.S. citizenship at birth. The laws governing whether or not a child born outside of the United States acquires U.S. citizenship from parents have changed several times. You ll need to look at the law that was in effect on the date of the child s birth (and the parents birth, if grandparents were U.S. citizens) for guidance. These laws differ for the following time periods: prior to May 24, 1934 May 25, 1934 to January 12, 1941 January 13, 1941 to December 23, 1952 December 24, 1952 to November 13, 1986, and November 14, 1986 to present. Naturalization of Parents ( Derivation ) When a parent naturalizes, his or her children may derive U.S. citizenship automatically, provided they have green cards and are under age 18 and living with the parent at the time. Becoming a U.S. citizen in this way has a special benefit: A child who gets U.S. citizenship through the naturalization of either or both parents does not have to participate in a naturalization ceremony. The laws on the automatic naturalization of children have varied over the years. Whether or not you are a U.S. citizen is determined by the laws that existed when your parent s naturalization took place. These laws differ for the following time periods:

19 parents who naturalized before May 24, 1934 parents who naturalized between May 24, 1934 and January 12, 1941 parents who naturalized between January 13, 1941 and December 23, 1952 parents who naturalized between December 24, 1952 and October 4, 1978 parents who naturalized between October 5, 1978 and February 26, 2001, and parents who naturalized between February 27, 2001 and the present. Proving Your U.S. Citizenship If you have a claim to U.S. citizenship based on one of the laws discussed in this article, you should acquire a passport or other document to prove it. To learn more, see my article Obtaining Proof of U.S. Citizenship. Comments or questions are welcome. * indicates required field Name:* * Subject:* Message:* Submit

20 How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens Turning 21 is cause for concern when the beneficiary is the child of a U.S. lawful permanent resident, but the immigration law adds some legal protections. The Child Status Protection Act (CSPA) was enacted in 2002 to help young people who turned 21 years old before U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) approved their green card applications. Due to lengthy delays on the green card waitlist and standard USCIS and DOS processing times, even if a petition was filed for a child well before his or her 21st birthday, the child would age out if he or she turned 21 before the petition was approved. The aging out phenomenon meant that many young people with pending applications had to wait even longer or in some instances, were no longer eligible for a green card. This article will address how the CSPA affects immediate relative petitions by U.S. citizens for their children who were under age 21 at the time of filing. The rules for other family-based applicants and derivative beneficiaries of green cards under the CSPA are much trickier and are explained in my article, How the CSPA Helps Family-Based Preference Relatives or Derivative Beneficiaries

21 Make Sure Your Child Isn t Already a U.S. Citizen If you are a U.S. citizen hoping to bring your child to the United States or legalize the child s status here, you can save yourself a lot of effort by checking into whether your child is already a U.S. citizen. The rules for who may acquire U.S. citizenship through their parents have changed throughout the years and who will qualify for automatic citizenship depends on the child s date of birth, the parent s time spent in the U.S., and other factors. For more information on this, see U.S. Citizenship Through Birth or Through Parents. How the CSPA Helps U.S. Citizens Bring Their Children to the U.S A child is defined by U.S. immigration law as an unmarried person under the age of 21. Immigration law gives preference to U.S. citizens immediate relatives namely, spouses and unmarried children under age 21. These immigrants are not subject to the statutory limits on the number of green cards that USCIS and DOS can issue each year, and therefore do not face long waits before a green card becomes available to them. Before the CSPA, however, even U.S. citizens needed to file Form I-130 well in advance of their child s 21stbirthday to ensure that he or she did not age out before USCIS got around to approving the application. Due to normal processing delays, aging out was unavoidable for many children of U.S. citizens. Now, as long as USCIS receives Form I-130 a day before your child turns 21, your child will be considered an immediate relative even if he or she is 21 or older when the petition is finally approved.

22 Who Qualifies as an Immediate Relative for CSPA Purposes The CSPA covers all immediate relative visa petitions, even those filed before the CSPA was enacted on August 6, As long as USCIS made no final adjudication of Form I-130 prior to that date, the child has an unlimited amount of time to formally apply for a green card by filing either Form I-824, Application for Action on an Approved Application or Petition, or if the child is already legally in the U.S., Form I-485, Application to Register Permanent Residence or Adjust Status. CSPA Strategy for Immediate Relative Petitions So as to avoid long waits, U.S. citizens hoping to bring their children to the U.S. to live permanently should file Form I-130, Petition for Alien Relative, BEFORE the child gets married and BEFORE the child turns 21. By doing this, these children will not have to wait for an immigrant visa to become available. To learn more about the application process, see Filling Out and Submitting Form I-130 for a Child. Be aware that even if your child is under 21 at the time you file Form I-130, if he or she gets married before receiving a green card, the visa petition will no longer be considered to be an immediate relative one. Unfortunately, your child s marriage will trigger a significantly longer wait for a green card. Permanent Residents Can Convert Children s Petitions to Immediate

23 Relative If They Naturalize What if you are a permanent resident whose child is living abroad? Unfortunately, the minor children of green card holders are not considered to be immediate relatives under the CSPA. They face delays in receiving green cards if they were not included as derivatives at the time that you applied for permanent residence. To see the current processing times for these visa petitions in family-based preference category F2A, view the U.S. State Department s Visa Bulletin. Although the CSPA offers them some protection (as described in How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries ), an even better approach would be if you can convert your immigrant visa petition to immediate relative. This is possible if you become a U.S. citizen before your Form I-130 is approved and your child is under age 21 when you receive your naturalization certificate. In this scenario, your child s age will freeze on the date that you naturalize. Possibilities When U.S. Citizens Married Children Are Widowed or Divorced U.S. citizens married children even if under age 21 are not considered immediate relatives, and are also processed as family-based preference category applicants. However, if the child s marriage is terminated before he or she turns 21, you can convert the visa petition to immediate relative by notifying USCIS. These situations are rare, but not unheard of. For example, let s say you have a daughter who is 18, but she is married. If you file Form I-130 now, the visa petition is placed in the F3 family-based preference category, and as of

24 early 2014, you can expect a wait of ten to 20 years for a visa to become available. Two years pass and your daughter is now 20, but she has divorced and has an official divorce decree. You can take advantage of the aging out protections of the CSPA by notifying USCIS that she can now be considered an immediate relative. This is also true if your daughter s husband dies before she reaches age 21. Unfortunately, there are can be no derivative beneficiaries for immediate relative petitions, so if your daughter has her own child that she would like to bring to the U.S., that child cannot be included if you convert her petition. Comments or questions are welcome. * indicates required field Name:* * Subject:* Message:* Submit How the CSPA Helps Family- Based Preference Relatives

25 and Derivative Beneficiaries Turning 21 no longer destroys children s eligibility as it used to learn the details here. The Child Status Protection Act (CSPA) of 2002 was a great step forward in addressing the lengthy wait times that often blocked good faith attempts by U.S. citizens and permanent residents to apply for green cards for unmarried children under age 21. Prior to the CSPA, many children with pending immigrant visa petitions aged out that is, lost their eligibility if a visa did not become available before their 21st birthdays. If a child aged out, it resulted in an even longer wait or in some instances, the child was rendered ineligible to be a derivative beneficiary on their parent s petition. Now, however, the child s age on the date that U.S. Citizenship and Immigration Services (USCIS) received the visa application compared to his or her age on the date a visa became available is what matters. This article will address whether you can take advantage of the CSPA if you are a U.S. permanent resident who filed a family-based visa petition for your child, or if you are a U.S. citizen with a pending petition for a family member, and that person s own child was included as a derivative beneficiary. If you are a U.S. citizen (or a permanent resident who hopes to naturalize soon) and you are looking to bring your foreignborn child to the U.S., the article How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens has information that is more applicable to your situation.

26 How Permanent Residents Can Sponsor Their Children for Green Cards First of all, let s explain some immigration jargon. Lawful permanent residents (LPRs) can file what is known as a family-based immigration petition for their children and for their unmarried sons and daughters by filing Form I-130, Petition for Alien Relative. U.S. immigration law defines a child as an unmarried person under age 21. USCIS and the U.S. Department of State (DOS) call the non-citizen children of U.S. citizens and permanent residents who are older than 21 sons and daughters. While this may sound like the same thing, the two categories are treated very differently by U.S. immigration law. If you visit the DOS Visa Bulletin, you can see that the children of LPRs are in visa preference category F2A and the sons and daughters of LPRs are in category F2B. These categories are important for this discussion of the CSPA because you can see the huge differences in wait times you definitely don t want your child to age out and be bumped down to the F2B preference category. (Take a look at the dates shown in the Visa Bulletin they indicate that people whose visa petitions were first filed on that day are only now eligible to continue the application process and receive their green cards.) How the CSPA Impacts Child Visa Petitions Filed by Permanent Residents If you are a permanent resident who didn t include your minor child as a derivative beneficiary in your own green card application (or if your child lost the green card by spending

27 too much time abroad and abandoning U.S. residency), you can file Form I-130 based on preference category F2A. Prior to the CSPA, if your child turned 21 before a visa became available, he or she would immediately have been moved down to category F2B. As you can see, this meant a much longer wait for a green card, and through no fault of the child s. But thanks to the CSPA, your child s I-130 petition will be protected if: it was either pending or approved on or after August 6, 2002 the beneficiary child didn t already receive a final decision on the adjustment of status or immigrant visa application before August 6, 2002, and the applicant seeks to acquire the green card within one year of a visa becoming available by filing I-824, Application for Action on an Approved Application or Petition or if your child is legally in the U.S., Form I-485, Application to Register Permanent Residence or Adjust Status. Now, by looking at the priority date (the date your Form I-130 was received by USCIS) and by making a few calculations, you can determine whether or not your son or daughter may still be considered a child under the CSPA. If the Form I-130 filed for your child is approved and the priority date becomes current before your child turns 21, as long as you apply for permanent residence within a year, your child is protected by the CSPA. But what if your child celebrates his or her 21st birthday and your Form I-130 has not been approved or your priority date is still not current? Will the CSPA protect your child? Unfortunately, in this case you must wait and see. Keep checking the Visa Bulletin each month to see whether the priority date is current. If so, it s time to do some math to see if the CSPA will help you.

28 Let s say your child was born on November 30, 1989 and has a priority date of February 15, A visa became available for your child in the July 2012 Visa Bulletin. You first should determine what your child s age was in days on the first day of the month of the Visa Bulletin (in this case, July 1, 2012). You can do this very easily with a date-to-date calculator: It s 8,249 days (or 22 years, 7 months, and 1 day). Next, subtract the number of days your I-130 was pending from your child s age. To find the days pending, use the date-todate calculator again to find out the number of days between the priority date and the Visa Bulletin date. In our example, you waited 867 days (2 years, 4 months, and 16 days) for a visa to become available. So your child s CSPA age is roughly 20 years and 3 months, meaning he or she is protected by the CSPA and may now file Form I-824 (outside the U.S.) or Form I-485 (legally present in the U.S.) for a green card. How the CSPA Impacts Child Derivative Beneficiaries of Familyand Employment-Based Visa Petitions The CSPA can also protect the child derivative beneficiaries of other family-based visa petitions, making sure that they can still be included in their parents applications when they would have aged out in the past. For example, if you are a U.S. citizen, you can petition using Form I-130 for a green card for your unmarried or married sons and daughters and for your siblings. In these petitions, derivative beneficiaries may also be included (namely, your grandchild, niece, or nephew). The same guidance and calculations from the previous section apply to you, except that you will be checking preference categories F1, F3, and F4 in the Visa Bulletin.

29 The CSPA also applies to child derivative beneficiaries of employment-based visa petitions using Form I-140, Petition for Alien Worker. (For more information on applying. While aging out is usually not an issue for priority workers, special immigrants, and religious workers, it can be a large issue for other preference categories, especially petitions from China, India, Mexico, and the Philippines. You can also calculate CSPA age for children included in employment-based petitions using the Visa Bulletin, but the calculation will be slightly different. The priority date that you will use depends whether or not labor certification was required. If so, your priority date is the date that the labor certification was filed otherwise, you can use the date Form I-140 was received. The CSPA Also Allows Permanent Residents to Opt Out The CSPA also allows LPRs who have filed Form I-130 on behalf of their unmarried son or daughter to opt out of (say no to) having their petition transferred to preference category F1 if they naturalize before a visa becomes available. You might wonder why you would ever want to opt out of one of the benefits afforded to U.S. citizens. But oddly enough, the F1 category has always been more oversubscribed than the F2A category for the unmarried sons and daughters of LPRs. The CSPA essentially allows an LPR with a pending I-130 for who later naturalizes to choose to be in the category in which a visa is available sooner. If this applies to you, the beneficiary child will need to notify USCIS in writing if he or she decides to remain in the F2A category. Comments or questions are welcome. * indicates required field

30 Name:* * Subject:* Message:* Submit Filling Out Form I-130 for Adult Son or Daughter (Over 21) of U.S. Permanent Resident Preparing the initial visa petition required to bring a green card holder s adult child to the U.S. If you are a U.S. green card holder (permanent resident), you may be able to petition for your foreign-born children who are age 21 or older (referred to as sons or daughters by U.S. immigration law) to immigrate to the U.S. and receive lawful permanent residence (green cards). To start this process, you will need to prepare and submit a visa petition on Form I-130, with supporting documents and a fee. Form I-130 is available for free download from U.S. Citizenship and Immigration Services (USCIS). This article

31 describes how to fill out and submit that form. Note that filing Form I-130 only starts the immigration process for a U.S. green card holder s son or daughter. Such a person will be considered a second preference relative, in category F2B of the visa preference system (unlike, for instance, the spouse or unmarried child under 21 of a U.S. citizen, who is an immediate relative ). Preference relatives face annual quotas on the number of visas (green cards) given out, and thus may have to wait years after approval of their I-130 for a visa to become available and to continue with their green card application. Who Qualifies as a Son or Daughter? Sons or daughters for whom a U.S. green card holder can petition using USCIS Form I-130 include those who once met the immigration law s definition of a child (at I.N.A. Section 101(b)(1)) but who have since turned 21 yet remain unmarried. The definition of child includes: natural-born children born to married parents natural-born children born to parents who are unmarried though if the father is the one filing the petition, he will need to prove that he legitimated the child or established a bona fide parent-child relationship, and stepchildren so long as the child was 18 or under when the parents married, and the parents are still married. What if you started the immigration process for your child before he or she turned 21? You might do not need to prepare another I-130 now. The Child Status Protection Act will allow you to subtract from your child s age the number of days that the I-130 was awaiting a decision from USCIS, as described in How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries.

32 How Long Will Your Son or Daughter s Immigration Process Take? How soon your son or daughter (married or over 21) will be able to immigrate after you submit the I-130 depends on how much demand there is in category F2B at the time you submit the visa petition. Category F2B allots only around 26,000 green cards per year worldwide, so your adult child will likely have to wait many years before a green card becomes available. To better understand this preference system of green-card allotment, see How Long Is the Wait for Your Priority Date to Become Current? Also realize that, if your son or daughter is living abroad, he or she will have to wait until the I-130 is approved and his or her priority date becomes current before starting the green card application. Approval of the I-130 confers no rights whatsoever to enter or live in the United States. Issues If the Son or Daughter Is Living in the U.S. Unlawfully Living in the U.S. without authorization can lead to the person accruing unlawful presence, and thus becoming inadmissible and possibly ineligible for a green card, as described in Consequences of Unlawful Presence in the U.S. Three- and Ten-Year Time Bars and The Permanent Bar to Immigration for Certain Repeat Violators. See an immigration attorney immediately if your son or daughter is living in the U.S. unlawfully (after an illegal entry or the expiration of a visa or other authorized stay). Again, having an approved I-130 will not solve this by itself. I-130 Form: Step-by-Step

33 Instructions Page one of Form I-130 shows two columns. The left column, or Part B, asks for information about the petitioner that is, you, the U.S. lawful permanent resident. The right column asks for information about the immigrant, referred to as your relative. Part A Question 1: Check the fourth box, Child. Question 2 3: These questions concern whether you and your child are related by adoption. Petitioning for an adopted child is an entirely different process. See an immigration lawyer with any questions. Part B- Petitioner s Information: Question 1: Enter your last name (surname) in capital letters (LIKE THIS), but your first and middle name in small letters. Questions 2-5: Self-explanatory. Question 6: This refers to your most recent marital status. For example, if you are currently married but previously divorced, simply check married. Question 7: You need not mention personal nicknames, but should include any first or last names by which you have been commonly known, and which therefore might have made it onto paperwork that you will, now or later, be submitting to the immigration decision-makers. Questions 8-9: Self explanatory. Question 10: You will find your Alien Registration Number (known as an A-Number) on your green card. Question 11 and 12: Add the names of any prior husbands and

34 wives, for example where the relationship ended in annulment, divorce, or death. Indicate the date the marriage ended. Question 13: As a green card holder, you would write N/A/ here. Question 14a and 14b: Permanent residents will find the date of admission on their green card. Place of admission is where you either entered the U.S. with your immigrant visa for the first time, or (if you adjusted status) were approved for residence by USCIS. Part C- Beneficiary s Information: Now you will be answering questions about your immigrating son or daughter (the beneficiary ). Question 1: Your child s current name, with last name (surname) in capital letters. Questions 2-5: Self-explanatory. Question 6: This refers only to the beneficiary s most recent marital status. Your child must remain unmarried to qualify in category F2B. Question 7-8: Self-explanatory. Question 9: Your child won t have a Social Security number until he or she has lived in the United States and had a work permit, a visa allowing work, or U.S. residence. If your child doesn t have a Social Security number, write N/A here. Question 10: The Alien Registration Number is an eight- or nine-digit number following a letter A that USCIS (formerly called INS) assigns to an immigrant based on an application for permanent (or, in some cases, temporary) residence or the person having been placed in deportation/removal proceedings. Of course, if your child had such a previous application denied based on being inadmissible or having lied on the

35 application, or your child has been ordered removed from the U.S., call a lawyer before going any further. Question 11 and 12: Self-explanatory. Question 13: It is important to state whether the child has been in the U.S., because certain types of negative immigration history may affect eligibility for a green card (or indeed any other application for U.S. entry). Question 14: Enter N/A if your child is living outside the United States. If living inside the U.S., state what visa status he or she legally entered in. (For example, B-2 visitor or F-1 student.) If your child illegally entered the U.S., or overstayed a visa, consult an attorney immediately the child is likely inadmissible to the United States, which will make it impossible to get a green card anytime soon unless a narrow exception applies. Question 15: If the child is currently in the U.S. on a legal work visa or work permit, state the employer s name and address. Question 16: If the child is or has been in immigration court (removal or deportation) proceedings, be sure to contact an attorney before filing Form I-130. Question 17: This is the continuation of Part C, so all questions still refer to the immigrant beneficiary son or daughter. List all the immigrant s children (if any); they may immigrate immigrate at the same time, as derivatives. Question 18: Self-explanatory. Question 19: If your immigrating child is in the U.S. and no longer has an overseas address, write N/A here. Question 20: If the immigrant s native language uses a non- Roman script (for example, Russian, Chinese, or Arabic), write the name and address in that script.

36 Question 21: This should be answered N/A. Question 22: This question is only for use when immigrants are already living in the U.S. and planning to apply for adjustment of status. See a lawyer if unsure whether the child qualifies to use this application procedure it s unlikely unless he or she has a long-term valid visa. As a backup, you will also need to list the U.S. consulate in the immigrant s home country. USCIS will figure out which consulate the case will be sent to, based on where the child lives and which of the U.S. consulates in that country actually handle immigrant visas. If the country listed doesn t have diplomatic relations with the United States, USCIS will locate one in a nearby country to handle your child s case. Part D: Other Information (More questions for the Petitioner): Question 1: This refers to other petitions being submitted simultaneously, (for example, if you are filing for your spouse as well, which you would need to do using a separate Form I-130), so that USCIS can process the initial visa petitions together. (Their applications are likely to be separated later, based on different priorities within the visa preference system.) Question 2: This question is meant to uncover the U.S. petitioner s history (if any) of petitioning other immigrants to come to the United States, just in case you ve shown any patterns of suspicious use of the immigration laws. You must sign the end of the application under Part E. If assisted by an attorney, he or she will sign under Part F, filling in the needed information. Required Documents for Submission With the I-130 You will need to gather copies (not originals) of the following documents along with the signed forms and filing

37 fees: Proof of U.S. permanent residence. This will require a copy of green card or your passport stamped with an I-551 (temporary proof of lawful permanent residence status sometimes given in advance of the actual green card). Proof of your parent-child relationship: In most cases of blood-related children, all that you need to provide here are a copy of the child s birth certificates listing you as the parent; and if you re the father, a copy of your marriage certificate showing your relationship to the child s mother. For a stepchild, you must also provide certificates showing your and your spouse s various marriages termination and formation. For a child born out of wedlock, if you re the father, you will need to submit proof of legitimation or a bona fide parent-child relationship. Fees. The fee for an I-130 visa petition is, as of early 2014, $420. However, these fees go up fairly regularly, so double-check the Forms page of the USCIS website at or call USCIS at for the latest amount. Where to File the Form I-130 Petition After you, the U.S. petitioner, have prepared and assembled all the forms and other items listed above, make a photocopy for your personal records. Then send the whole visa petition to the USCIS lockbox indicated on the website instructions for Form I-130. The lockbox will process the fee payment, then forward the petition to a USCIS Service Center for further handling. What Happens After Filing the I-130 A few weeks after sending in the visa petition, you should get a receipt notice from USCIS. The will tell you to check the

38 USCIS website for information on how long the application is likely to remain in processing. Look for the receipt number in the upper left-hand corner, which you will need in order to check the status of the case online at There, you can also sign up for automatic updates about the case. If USCIS needs additional documentation to complete the application, it will send you a letter asking for it. Eventually USCIS will send an approval or a denial of the visa petition. This may take a long time, but don t worry it will not affect the speed of your son or daughter s case. The priority date establishing your son or daughter s place on the waiting list for a visa has already been set as of the date USCIS received the I-130 petition. If USCIS denies the petition, it will provide a denial notice stating why. Your best bet is most likely to start over and refile the application (rather than attempt an appeal), and fix the reason USCIS gave for denying the I-130. But don t just refile it if you don t understand why the first one got denied instead, get an attorney s help. If USCIS approves the application, it will send you a notice and then forward the case to the National Visa Center (NVC) for further processing. Your son or daughter can expect to later receive communications from the NVC and/or consulate, and if and when the priority date has become current, to attend a visa interview there. See Consular Processing Procedures for more information. If your immigrating son or daughter is living in the U.S. and is eligible to adjust status here, the next step (after the priority date becomes current) is to file an I-485 application for adjustment of status. Your son or daughter, and perhaps you as well, may be called in for an interview at a USCIS office. See Adjustment of Status Procedures for more information.