For those who have a 21 years old child
I copied the following message from downstairs, I think it’s very helpful for those who have a 21 years old child.
Some of the Employment-Based I-140 beneficiary aliens or I-485 applicants have children who reached 21 or approach the age of 21 soon. Since such child cannot immigrate with the parent immigrant worker once he/she reaches 21, unless he/she is defined as a "child" (less than 21 years of age). Accordingly, the aging-out of a child, especially during the period of severe visa number retrogression, should be a devastating issue for the family.
Currently, the USCIS exercises discretion and expedite such family's EB-485 applications when two conditions are met: (1) Visa number is available for them. When visa number is not available for them, there is nothing the agency can help. (2) Such aging-out child is not eligible for protection under the CSPA. Since currently the employment visa number is not available and will continue so in the future for most of the EB-categories, particularly Indians and Chinese, the option of USCIS "expedite" is less an issue. Accordingly, the people who have such children should seek legal counsel to see whether their children are or will be protect under the CSPA and will be able to immigrate with them and not being permanently separated from them.
The CSPA is a body of law which is very complex and it is not something one can summarize the rules in a few pages, not to mention a few lines. However, we will lay out some points which may help some of these immigration seekers in dealing with their growing-up children problem. "Protection" which is provided for the aging out children means that even if the protected children reaches 21 years of age, such children will be still considered a "child (less than 21)" for the purpose of derivative beneficiary immigration. Generally, we can present three (3) broad areas that involve the employment-based immigrants as follows:
Children Aged-Out Before August 6, 2002: Even if they passed 20 years of age, they will be protected by this law if the following conditions are satisfied:
I-140 petition was filed and pending before August 6, 2002; or
I-140 petition was approved before August 6, 2002, and I-485 was filed before August 6, 2002, but there was no final decision on I-485 on or before August 6, 2002.
Children Aged-Out or To-Be-Aged-Out After August 6, 2002: The children's age is calculated by first determining the age of the children "on the date that a visa number becomes available."
The date that a visa number becomes available is the date I-140 petition is approved if the visa number was available at the time I-140 was approved.
If the visa number was not available at the time I-140 was approved, the age is determined by the age at the time of visa number becomes available minus "the period that I-140 was pending" In other words, longer there had been a delay in I-140 petition processing by the USCIS, the aging-out is delayed under the CSPA.
Special Rule During the Visa Number Retrogression: If a visa availability date regresses, the following rules or practice are in place:
If I-485 was filed before the visa number retrogressed, the Service Centers should retain such I-485 and note on the I-485 form the visa availability date at the time I-485 was filed. Once the visa number becomes available again for the specific EB category, they should determine whether such aged out person is considered a "child" using the visa availability date marked on I-485 form when the visa number retrogressed.
If, however, the child has not filed I-485 prior to the visa availability retrogression and files I-485 later after the visa availability date becomes available again, such aged out children's age is determined using the subsequent visa availability date.
Again, people should remember that the law of CSPA is extremely complex and even tens of pages are not enough to outline the skeleton of the rules. It is thus critically important that people seek legal counsel and never dare to guess the rule or law in this area.