CONFUSED: F-4 Family Fourth Preference My Sister's Daughter Concerns

[Chowchow 0]

Hi All!

Quick Bio: I'm a US Citizen (36 Male), live in Albany, NY. I will be petitioning for my sister (who is 34) to get a green card to the United States through F-4 Fourth Preference. She has a daughter who will be turning 9 in September & would like to know how the sister's daughter is impacted.

A) Is it the case that the priority date starts from when the I-130 is submitted, not from when it is processed which is something like 4-5 years now? The travel.gov VISA bulletin shows a wait of about 12 years and 7 months as of August 2015 for "F-4: Family Fourth Preference."

So does the wait become the 4-5 years of the I-130 time to be processed AND roughly 12 years & 7 months of the Visa bulletin? Or is it just 12 years & 7 months altogether?

B) My sister's daughter is turning 9 in September. Assuming the wait for my sister is about 13 years, my sister's daughter will be over 21. My understanding is that the age 21 means the difference between being F2A or F2B with F2A having a wait of about a year and a half and F2B having a wait of about 6 years! If F2A can be done, I think that means it would be about 13 + 1.5 = 14.5 years before my sister's niece could become a resident (she could go to school here before then which is fine). But with F2B, her daughter would have to wait 13 + 6 = 19 years!!!

So is there any application of the "Child Status Protection Act" for my sister's daughter to use F2A? I have read that I-130 wait times for siblings/brothers/sisters is about 4 years, so does that mean my sister's daughter's age would be frozen for 4 years?

Thanks,

ChowChow

Edited July 17, 2015 by Chowchow

[aleful 1,905]

hi

it will be over 12 years until the priority date becomes currents, the priority date is given close to when USCIS received the petition

your getting confused, f2a or f2b doesn't apply for her at least not for now, she may be covered under CSPA, we don't know

but in the worst case scenario, her parents come to the US, and all these years she must remain unmarried

so then one of her parents would have to file for her once they are LPR, then she would be an F2B, and depending on the country it could be over 7 years of waiting

so hopefully she is covered under the CSPA and could get her GC as derivative

F2A and F2B are unmarried children of LPR. if she ages out, and cannot come with parents, there ends the sibling petition. She stays behind. Her parents come and file a whole new petition and that's why she get's to be in a different category. Depending on the country from where she is, and because the wait starts again it would be 7 or more years

so if she doesn't get the GC with her parents, it would be maybe 20 or more years, but it could be less if laws change and they issue more visas annually.

[Chowchow 0]

How do we know precisely if CSPA rules apply to my sister’s daughter? Right now, with current wait times we are looking at ~13 years for my sister to get the Lawful Permanent Residence. In 13 years, my sister’s daughter will be 22 (currently 9). Current wait times for I-130 are about 5 years. So do we subtract 22 - 5 = 17 years old so would CSPA apply here?

[apple21 953]

Chances are (and hopefully) she will be covered by CSPA. However keep an open mind about it. Nothing is etched in stone. She may not even want to immigrate when the time comes.

[Chowchow 0]

Chances are (and hopefully) she will be covered by CSPA. However keep an open mind about it. Nothing is etched in stone. She may not even want to immigrate when the time comes.

So if the I-130 Waiting Time For My Sister is 5 years, does that subtract 5 years for my sister's daughter's age then? I.E. if I file the petition for I-130 tomorrow (hypothetically speaking), and it takes 5 years to process the I-130 (current processing times), my sister's daughter who is 9 right now, and will turn 22 in 13 years, but due t othe I-130 delay of 5 years would be treated as 17?

Also, once my sister gets her green card in 13 years, does she have to stay in the States for any specified amount of time? Like say she has a good job offer, and suddenly at 13 years she gets the chance to get her green card – does that mean she has to quit her job/move to US for a certain number of years?

[Boiler 43,430]

Permanent Resident sort of gives it away, if she does not wish to permanently reside in the US no point applying

You are looking at how long people getting their GC have been waiting everything I have seen suggests waiting times will get longer.

If you want to file do so now and forget about it for a decade and then review. What a daughter who will be in her 20s wants to do then is beyond conjecture.

[Chowchow 0]

I agree that it makes sense that wait times will get longer in general, though sometimes I wonder if future legislation may make it easier.

Well my sister would want to reside in the US, but the question is once she gets her permanent residence, how long does she have to stay in the U.S. for that permanent residence to stay that way or is it conditional. Like for instance with marriage there is something called conditional permanent residence, so not sure if there is anything like that where you have to stay a minimum amount of time for the Family-based visa/permanent residence to remain valid.

> What a daughter who will be in her 20s wants to do then is beyond conjecture.

She will likely want to be in the US since the country of origin (Pakistan) has poor prospects overall, and all our extended family is in the States.

Ok so does anyone know the answer to whether or not CSPA applies to the DAUGHTER of a “SIBLING who is applying under F-4 Status”? The I-130 Waiting Time for Siblings is around 5 years, so I want to know if those 5 years would be subtracted for my sister’s DAUGHTER’s age.

Edited July 17, 2015 by Chowchow

[amandaciar22 1]

I agree that it makes sense that wait times will get longer in general, though sometimes I wonder if future legislation may make it easier.

Well my swister would want to reside in the US, but the question is once she gets her permanent residence, how long does she have to stay in the U.S. for that permanent residence to stay that way or is it conditional. Like for instance with marriage there is something called conditional permanent residence, so not sure if there is anything like that where you have to stay a minimum amount of time for the Family-based visa/permanent residence to remain valid.

> What a daughter who will be in her 20s wants to do then is beyond conjecture.

She will likely want to be in the US since the country of origin (Pakistan) has poor prospects overall, and all our extended family is in the States.

Ok so does anyone know the answer to whether or not CSPA applies to the DAUGHTER of a SIBLING who is applying under F-4 Status? The I-130 Waiting Time for Siblings is around 5 years, so I want to know if those 5 years would be subtracted for my sisters DAUGHTERs age.

for that permamnent residence to stay? She has to stay in the us

I dont know how long she can be out of us say to visit your home country

Based on what i read here in the forum...

Yes cspa can be applied to her, but its way too early to calculate at this moment.

Given you already applied for the I 130 you have to wait for your sister's PD to become current

then you can calculate your niece age, thru the time it took for the i 130 to be approved minus the age of the child.

What i can say if you wanted to petition your sister, do it now, its a really long wait.

[Chowchow 0]

for that permamnent residence to stay? She has to stay in the us

I dont know how long she can be out of us say to visit your home country

Based on what i read here in the forum...

Yes cspa can be applied to her, but its way too early to calculate at this moment.

Given you already applied for the I 130 you have to wait for your sister's PD to become current

then you can calculate your niece age, thru the time it took for the i 130 to be approved minus the age of the child.

What i can say if you wanted to petition your sister, do it now, its a really long wait.

Could you clarify the first statement? I thought permanent residency once you get it is "permanent" when my sister enters the US and that at that point she can enter/leave freely for how long she wants. I know this is the case for "permanent residence" in general, but not sure if there is some probationary period once my sister's permanent residence is obtained.

Secondly, I read some startling information about the CSPA – someone correct me if I am wrong but the Supreme Court back in June 2014 RULED that CSPA would NOT apply to F-4 derivative children (aka my sister's daughter). In other words, if my sister gets her permanent residency, and her daughter is over the age of 21, the daughter will not get to be protected from "aging out."

See this: http://www.nolo.com/legal-update/supreme-court-rules-cspa-derivative-visa-beneficiaries-can-age-out.html

"In Scialabba v. Vuellar de Osario, in June 2014, a divided Court found that the benefits of this Act -- namely to protect children from "aging out" and losing visa eligibility when they turn 21 -- applies only to the children of permanent residents who filed visa petitions on their behalf, making the children "principal beneficiaries." It does not apply to "derivatives beneficiaries," or children of the person named on the visa petition."

I believe this is currently the case. From what I've read thus far, I believe Congress was upset with Supreme Court deciding this, and felt that Supreme Court made a mistake doing this. I can only hope that Congress passes legislation to correct this!!!!!!!!!!!!!!!

Edited July 17, 2015 by Chowchow

[Boiler 43,430]

You are wrong in what you think permanent residency is.

The nolo article is about a different issue.

[aleful 1,905]

Chowchow

that is incorrect, a person can lose residency after being out of the country for over a year, GC is for living in the US

now once a person becomes a USC, then you can leave for as long as you want

but the GC is for residency in the US. I lost mine when I was a child. I had a GC through my dad's employer, my dad died and my mom decided to return to Argentina, I lived in Argentina for 25 years until I was able to return, but my mom had to file all over again

you lose your GC if you live out of the country, you MUST reside in the US for the GC or you will lose it

you can travel to visit out of the country but not live out of the country

[Chowchow 0]

You are wrong in what you think permanent residency is.

The nolo article is about a different issue.

Yes, I was unaware of the permanent residency not being so permanent after all. Good to know that leaving the country can make you lose it.

Regarding the Nolo article, is about how F-4 Derivatives (aka children) cannot get age protection through Child Status Protection Act. There was a ruling by the Supreme Court in June/July 2014 that says time can't be frozen for siblings' children (and can't substract the years that were in pending). I'm pretty sure about that since a few articles said that, so I believe the current advice that a sibling's derivative (i.e. child) can get age protection after the age of 21 is currently invalid. That means they wouldn't get to go through F2A which has a current wait of about 1.5 years but F2b which is 6-7 years!

See: http://www.immigrationvisaattorneyblog.com/2014/06/bringing-children-to-the-us-scialabba-v-cuellar-de-osorio.html

"In 2002, Congress passed the Child Status Protection Act in an attempt to alleviate the harsh effects of the “age out” provisions in the immigration law. After the Cuellar de Osorio decision, however, the Supreme Court’s interpretation of CSPA means that only children in certain categories will be able to immigrate with their parents even after they reach the age of 21. Once derivative children in the F3 and F4 categories turn 21, however, their ticket to the United States evaporates."

Edited July 17, 2015 by Chowchow