有關未婚子女親屬的申請之二

By: Beth Robertie, Esq. 父母最為關心的是子女能夠與他們一起調整身份。我們知道享有該資格，子女必須未滿21歲，未婚。但其中有訣竅。以下就申請日期，批準日期，優先日期對年齡的影響及計算方法詳細說明： As we discussed yesterday, one of the biggest concerns for parents who are immigrant visa petitioners is ensuring that their children remain eligible to adjust status. In order to adjust status as a dependent, a child must be under 21 and unmarried. However, due to service center delays and retrogression issues, many children are beyond 21 and therefore ineligible to adjust as a dependent by the time their parents are eligible. Although Congress has given these children some protection, the math involved can be tricky. The Child Status Protection Act (CSPA) attempts to protect children from “aging out” due to service center delays in both family-based and employment-based petition processing, but does not offer total protection from aging out. Simply put, the child’s age is frozen for the period of time that the USCIS is processing the petition. However, and perhaps most troublingly, the child’s age is not frozen for the period of time that a visa number is not currently available. And, it only continues to freeze if, within one year of the visa number becoming current, appropriate steps are taken to acquire permanent resident status. The child’s age is locked in the first day of the first month that the parent’s priority date becomes available. The time between the petition filing date and the approval date is then subtracted from the first day of the first month that the parent’s priority date becomes available. Here is how this works: Adam files a family-based immigrant petition (I-130) for his brother Bob on 3/01/99. Bob’s son, Charles, was exactly 12 on 3/01/99. The I-130 petition is approved on 5/01/05. However, due to retrogression, a visa number does not become available until 7/01/2013. At the time that Bob’s priority date is current, Charles is 26 years and 4 months old. However, because of CSPA, 6 years and 2 months are subtracted from his age, making him 20 years and 2 months old, and therefore he is still eligible to adjust his status as a dependent. As long as he takes the appropriate steps to adjust within a year of his parent’s priority date becoming current, he remains eligible. However, in the same situation if the visa number does not become current until 7/01/2014, then Charles is 27 years and 4 months old, and despite the fact that the USCIS will subtract 6 years and two months from his age, he is still too old (21 years and two months) to adjust as a dependent. The same application applies to employment-based petitions (I-140). Using the same formula, if a company files (or a Bob self petitions based on NIW, Extraordinary Ability or Outstanding Researcher) an I-140 on behalf of Bob on November 1, 1999 and at that time, Charles is 12 years, 8 months. The I-140 is approved on October 1, 2002, however, due to issues of the visa retrogression, the priority date will not become current until November 1, 2011. At the time Bob’s priority date becomes current, Charles is 24 years and 8 months. Because the I-140 was pending for only 2 years and 11 months, you can only subtract the time that the I –140 was pending from Charles current age. Once subtracted, Charles is 21 years 9 months, too old to adjust status as a dependent. Understanding the CSPA is very confusing, therefore, it is highly advisable that you speak to an immigration attorney to discuss your case in detail. 本文由範毅禹律師事務所提供 本律師事務所精辦各類勞工應聘及專業移民申請 (包括H-1，L-1，EB-1，EB-2，NIW，勞工卡，綠卡等申請)。所有申請由多位美籍律師及擁有15年經驗的範毅禹律師親自處理，我所並特設中英移民網站。內有最新移民新聞資訊及由律師主持的移民問答集，歡迎讀者流覽查詢。 www.fan-law.com (Chinese) www.fanuslaw.com (English) CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]