CSPA

[Hypnos 6,576]

It's five years until he turns 21 (depending on exactly when his birthday is, which isn't stated here) and roughly five years until she becomes a USC. It would be a rough timeline, but using CSPA to deduct the processing time might get him under 21.

I still think the best option is as JimVaPhuong described above, to have him interview in the foreign country once his priority date becomes current. He might have to spend a few weeks outside the US during the final processing of his immigrant visa but he shouldn't have any illegal presence issues to deal with.

Edited October 31, 2012 by Hypnos

[Boiler 43,720]

He is 17 in a couple ofweeks.

[Hypnos 6,576]

Looks like that was posted on another thread.

It would probably be dicey then. The immigrant visa is likely the best way to go.

[apple21 953]

Same thread by same member: http://www.visajourney.com/forums/topic/394864-sposoring-son/

[renny745 1]

If i file the I-130 now, wouldnt the processing time be subtracted from his age when i become a citizen? since it takes a couple of years to process the i-130,so im hoping the age can be subtracted, and he wouldnt have to return, and how long will it take for interview at the consulate in trinidad and tobago?

[ceadsearc 516]

If i file the I-130 now, wouldnt the processing time be subtracted from his age when i become a citizen? since it takes a couple of years to process the i-130,so im hoping the age can be subtracted, and he wouldnt have to return, and how long will it take for interview at the consulate in trinidad and tobago?

It doesn't usually take a couple years to process the I-130. The I-130 usually takes less than a year and then it is just waiting for a visa number.

[Hypnos 6,576]

It certainly won't take two years to process the I-130. You are looking at a year - tops - for that, and probably closer to ~6 - 8 months until you receive an approval notice.

The processing time it takes can be deducted from his biological age whenever a visa number becomes available to him, to arrive at his "CSPA age", but from the timelines described above I'm not sure it will end up as a number under 21.

Interviewing at a foreign embassy is probably the best way, as described above. This will probably involve him needing to spend several months outside of the US. Not to mention that if you try to adjust him as an immediate relative then he is going to be out of status for the next five years, which is not a pleasant thing to experience.

Edited November 2, 2012 by Hypnos

[Hypnos 6,576]

I would also add that I am not completely sure that the processing time can be deducted from his biological age if the petitioner naturalises. Some of the information I have found indicates that this may only apply to petitions filed by LPRs, and instead the age freeze on the day of naturalisation is how it is done for US citizens (in which case there is no chance of him retaining a classification as an immediate relative).

Hopefully someone more knowledgeable can chime in on that.

[JimVaPhuong 4,863]

If i file the I-130 now, wouldnt the processing time be subtracted from his age when i become a citizen? since it takes a couple of years to process the i-130,so im hoping the age can be subtracted, and he wouldnt have to return, and how long will it take for interview at the consulate in trinidad and tobago?

No. The rules are different for family preference and immediate relative cases. For family preference cases they wait until the priority date is current, and then they deduct the processing time from the beneficiary's age and lock their age on that date for one year. For immediate relative cases they lock the beneficiary's age on the date the petition is received or the date the petitioner becomes a US citizen, whichever date effectively makes it an immediate relative case. Processing time is irrelevant in immediate relative cases. What you're effectively expecting the government to do is retroactively qualify your son as an immediate relative on a date that was before you became a US citizen. They won't do that. They will only subtract the time the petition was pending if the visa category is subject to annual numerical limits, and that doesn't apply to immediate relative cases.

Based on what's been said in this thread so far...

If you file the I-130 now then his visa category will be F2A. His priority date is going to be current in the F2A category before he's 21 years old, so he'll be eligible to apply for a visa in that category. However, because F2A is not an immediate relative category, he can't adjust status in the US unless he has maintained his non-immigrant status since his arrival. He has not, so that's moot.

What you're hoping for is to become a US citizen before he ages out so that he can adjust as an IR2, and then his overstay won't matter. According to the dates you gave in the other thread, you're going to be eligible to become a US citizen in October of 2017. Your son is going to become 21 years old in November of 2016 - nearly a year before you're eligible to become a US citizen. He won't be able to adjust status as an IR2. His petition will become an F1, which again is a family preference visa category.

So, unless your son marries a US citizen, he is going to be in a family preference visa category regardless. This makes adjustment of status within the US impossible. If he stays in the US after he's 18 years old then he begins to accumulate unlawful presence. The fact that he's applied for deferred action won't change this - it will only protect him from deportation for a limited amount of time. If he accumulates more than 180 days of unlawful presence then he'll incur a ban of three years when he leaves the US. If he accumulates more than 1 year of unlawful presence then he'll incur a ban of 10 years when he leaves the US. It's difficult to get those bans waived, especially for an adult son.

On the other hand, if he leaves before he's 18 then he shouldn't have to remain outside the US for more than a year before his priority date will be current in the F2A category, and he'll be able to get a visa. This is the safest path by a wide margin.

Regarding your attorney: Either you're not laying all your cards on the table with the lawyer, or you're getting some faulty advice. Not all attorneys have your best interests in mind. Some don't really care if you fail, even if it's because they gave you bad advice, because they make more money with appeals and appearances in immigration court. I suggest you consult with at least one more attorney.

[renny745 1]

No. The rules are different for family preference and immediate relative cases. For family preference cases they wait until the priority date is current, and then they deduct the processing time from the beneficiary's age and lock their age on that date for one year. For immediate relative cases they lock the beneficiary's age on the date the petition is received or the date the petitioner becomes a US citizen, whichever date effectively makes it an immediate relative case. Processing time is irrelevant in immediate relative cases. What you're effectively expecting the government to do is retroactively qualify your son as an immediate relative on a date that was before you became a US citizen. They won't do that. They will only subtract the time the petition was pending if the visa category is subject to annual numerical limits, and that doesn't apply to immediate relative cases.

Based on what's been said in this thread so far...

If you file the I-130 now then his visa category will be F2A. His priority date is going to be current in the F2A category before he's 21 years old, so he'll be eligible to apply for a visa in that category. However, because F2A is not an immediate relative category, he can't adjust status in the US unless he has maintained his non-immigrant status since his arrival. He has not, so that's moot.

What you're hoping for is to become a US citizen before he ages out so that he can adjust as an IR2, and then his overstay won't matter. According to the dates you gave in the other thread, you're going to be eligible to become a US citizen in October of 2017. Your son is going to become 21 years old in November of 2016 - nearly a year before you're eligible to become a US citizen. He won't be able to adjust status as an IR2. His petition will become an F1, which again is a family preference visa category.

So, unless your son marries a US citizen, he is going to be in a family preference visa category regardless. This makes adjustment of status within the US impossible. If he stays in the US after he's 18 years old then he begins to accumulate unlawful presence. The fact that he's applied for deferred action won't change this - it will only protect him from deportation for a limited amount of time. If he accumulates more than 180 days of unlawful presence then he'll incur a ban of three years when he leaves the US. If he accumulates more than 1 year of unlawful presence then he'll incur a ban of 10 years when he leaves the US. It's difficult to get those bans waived, especially for an adult son.

On the other hand, if he leaves before he's 18 then he shouldn't have to remain outside the US for more than a year before his priority date will be current in the F2A category, and he'll be able to get a visa. This is the safest path by a wide margin.

Regarding your attorney: Either you're not laying all your cards on the table with the lawyer, or you're getting some faulty advice. Not all attorneys have your best interests in mind. Some don't really care if you fail, even if it's because they gave you bad advice, because they make more money with appeals and appearances in immigration court. I suggest you consult with at least one more attorney.

but the deferred action can be renewed.

[Stephen + Elisha 92]

but the deferred action can be renewed.

Yes, the deferred action can be renewed. But he'll be over 21 by the time you obtain citizenship. Children of U.S. citizens over age 21 are in a family preference category, NOT immediate relative, and thus cannot adjust in the U.S. if they're out of status. Deferred action does not confer lawful status, nor does it (as far as I know) stop the clock on the accumulation of unlawful presence that would incur a 3- or 10-year ban upon his eventual departure.

IMHO, you need to come to terms with the fact that your son will have to leave for a time in order for him to obtain permanent residency, and that will probably have to happen before he turns 18 or within 6 months thereafter.

[Boiler 43,720]

DACA does stop the clock.

[Stephen + Elisha 92]

DACA does stop the clock.

You're right. I checked the main USCIS page (http://www.uscis.gov/childhoodarrivals) and the brochure and didn't see that, but it turns out it's in the FAQ (emphasis added):

In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=3a4dbc4b04499310VgnVCM100000082ca60aRCRD&vgnextchannel=3a4dbc4b04499310VgnVCM100000082ca60aRCRD

Even so, he'll still have to leave when the I-130 is approved because:

• DACA does not confer lawful status;
• Only out-of-status immediate relatives (IR) of U.S. citizens are eligible to adjust in the U.S. based on an approved I-130, not family preference categories (USC or LPR);
• Based on timelines, the OP's son most likely will be approved not as an IR, but rather as an F2A (child of LPR) or F1 (unmarried son of USC).

[Boiler 43,720]

I guess the question is what if anything will happen to those in DACA.

Anything permanent will require Congressional approval which seems unlikely in the foreseeable future.

I would expect most people given the choice would go for the Permanent Residency.

[renny745 1]

So can I send in the I-130 an let him wait here,,then when the priority date is current ,he goes back and applies for a visa?