» Permanent Residence

What is the Child Status Protection Act?

Congress created the Child Status Protection Act (CSPA) to prevent certain children who were under 21 years of age when an immigrant petition was filed from losing immigration benefits as a child when becoming 21 years or older. If CSPA applies to a particular foreign national, the person will be considered a child for immigration purposes even if the person is now at least 21 years of age. CSPA requires performing a calculation that subtracts the number of days/years the USCIS took to approve the immigrant petition from the foreign national’s age at the time a visa number first became available. If the resulting age is under 21 years, then the person would be considered a child for immigration purposes.

My petitioner died. Can I still immigrate?

When a petitioner dies, the I-130 petition filed by the petitioner on your behalf is automatically revoked, except in the case of a widow(er) of a United States Citizen (USC). For a widow(er) of a USC, the I-130 is automatically converted to an I-360 widow(er) petition upon the death of the USC spouse. For others, the I-130 is revoked upon the petitioner’s death and immigration under the revoked I-130 petition requires a request for and approval of humanitarian reinstatement by USCIS. We would need to assess your case to determine whether or not any remedies exist under the law with your particular facts and circumstances.

Can I retain my old priority date?

Maybe. We would need to evaluate your case to see if priority date retention applies in your case. Generally, certain petitions may be eligible to have a previously issued priority date assigned to them in cases where both petitions were filed by the same petitioner for the same beneficiary, and approved, but not revoked or used.

What’s a derivative beneficiary?

A derivative beneficiary is not the foreign national a petition was initially filed on behalf of, but the derivative may still be able to benefit and immigrate along with or after the principal beneficiary based on a spousal or parental relationship.

What is cross-chargeability?

Where a foreign national was born can determine when that person may seek to immigrate to the United States. The priority date issued to the foreign national along with where the foreign national was born will determine where the person is in the queue in their quest to seek permanent residence. In an attempt to be fair, Congress wanted the annual allotment of green cards to be equally shared amongst all countries. Some countries have far more nationals who pursue immigration to the U.S. than other countries. For example, immigration demand from India, Mexico, China and Philippines are greater than the number of green cards available to those countries. In turn, immigration for a foreign national from those countries can take many years more than if the foreign national was born in a country that was not oversubscribed. Generally, a foreign national who seeks to immigrate to the United States is subject to the country they were born in and therefore the numerical limitation on annual immigration for that specific country, even if they no longer live in that country. Cross-chargeability is an exception to the above rule that may allow a foreign national, in certain limited cases, to use the country of birth of their spouse or parent in order to legally circumvent the numerical limitation on the foreign national’s actual country of birth.

What’s a priority date?

The government uses a “priority date” to determine a foreign national’s place in a queue for an immigrant visa. Unless the foreign national is an immediate relative, their priority date will determine when they may apply to immigrate to the United States. There are a limited number of green cards that can be issued in any given year for foreign nationals who are not immediate relatives of U.S. citizens: 226,000 for family-based petitions and 140,000 for employment-based petitions. Therefore, the government uses a priority date to place people in the waiting queue. For family-based immigration, certain self-petitioners, some employment-based immigrants and certain investors, the priority date is the date the USCIS receives a properly filed immigrant petition. For other employment-based immigrants, the priority date depends upon whether a labor certification (PERM) was required or not. Where a PERM is required, the priority date is set on the day the PERM is with the U.S. Department of Labor. When a PERM is not required, the priority date is set on the day USCIS accepts a properly filed I-140 petition for processing. The U.S. Department of State publishes a visa bulletin every month stating which priority dates they will be processing in the coming month for permanent residence. Foreign nationals waiting in line may check the visa bulletin to find out where they are in the queue.

What is an adjustment of status?

This is a request to go from nonimmigrant status to immigrant status. For example, if you’re a nonimmigrant in the U.S. as an F-1 student, but now married a U.S. citizen, you might file for an adjustment of status to lawful permanent resident status (a.k.a. “Green Card”).