Question about Age restriction

[Bunty24 4]

Hello, my mother had petitioned for my oldest brother (married with wife and a child who is now 21) and the website says "waiting for interview". My question is that long ago, when my parents received their green card interview, I was under 21 and I missed the opportunity to fly back to the country of my birth. They were told that since I am in USA, I should be able to adjust my status (I was an international student at that time); however, long story short, once they arrived here and i went with them (I had already turned 21) so my application was denied at local USCIS Office. They told me that I could have gone back home and completed the interview process. I met someone recently who had petitioned for her sister and 2 sons back in 2008. They just came to USA in February. The sons were both over 21 but they were able to arrive to USA under their mother. 

Question is that were they approved because they were still living there regardless of age? My niece is currently in USA as an international student but she is concerned that she is 21 already and may be denied even if she flies back to her birthplace when their interview appointment is confirmed.  Sorry for long details but really want to understand how this would work.  Based on my previous question here on this forum, it was suggested that she must go back even for 2 weeks for the interview. As of now, how things are, she is also afraid of return. 

Thank you in advance. 

[Bunty24 4]

Just to add to the context. My brother case timeline:

Petition was sent on 10/26/2010
Case was approved on Feb 2015

Priority Date: Oct 26 2010

As of now: waiting for Interview

Country of birth: Bangladesh
if i read the bulletin, they are working on22JUN11 for  F3 category. But not sure if this is same as interview. As of now, we have no update on when interview will take place. It could be months or years again based on current situation.

 

[OldUser 9,654]

You have to read about Child Status Protection Act (CSPA) and how it works. There's calculation which determines whether somebody ages out or preserves their age for I-485

 

Here's starting point:

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

Edited Monday at 03:04 AM by OldUser

[Bunty24 4]

Thank you. this is definitely helpful. So, now that my niece is 21, if interview date does come up soon, should she fly back for few weeks? My worry is her return as based on what I see in the news, some are denied re-entry. That is another big concern we have. Thank you again.

[Boiler 47,351]

Seem more logical to adjust

[Bunty24 4]

Thanks but as I said, my request was denied when I tried to apply for Adjustment of Status. i would not want her to go through the same trouble. In my case, my parents were told from the embassy that i do not have to travel for interview, i can just adjust it here. unfortunately, i took it lightly and ended up with a denial. Nothing happened when i did request with an Appeal. 

[OldUser 9,654]

22 minutes ago, Bunty24 said:

Thanks but as I said, my request was denied when I tried to apply for Adjustment of Status. i would not want her to go through the same trouble. In my case, my parents were told from the embassy that i do not have to travel for interview, i can just adjust it here. unfortunately, i took it lightly and ended up with a denial. Nothing happened when i did request with an Appeal. 

Well, you probably aged out at the time you filed for adjustment.

[Boiler 47,351]

2 minutes ago, OldUser said:

Well, you probably aged out at the time you filed for adjustment.

So it seems

[Bunty24 4]

Thank you. I think that was the situation with me. 

[appleblossom 4,309]

8 hours ago, Bunty24 said:

Just to add to the context. My brother case timeline:

Petition was sent on 10/26/2010
Case was approved on Feb 2015

Priority Date: Oct 26 2010

As of now: waiting for Interview

Country of birth: Bangladesh
if i read the bulletin, they are working on22JUN11 for  F3 category. But not sure if this is same as interview. As of now, we have no update on when interview will take place. It could be months or years again based on current situation.

 

See the link I gave you on your other thread about interview wait times. 

 

I agree with the above, your niece should adjust status if she can, she may have to be out of the US for far longer than 2 weeks if she interviews in Bangladesh. But she can’t adjust status before her father gets his visa I believe, as he’s the principal applicant, so possibly she’ll have finished her studies and be back in Bangladesh by then anyway? So she can just join the rest of her family and do consular processing. 
 

It sounds like you’re still in the US, what’s your status? 

Edited Monday at 11:11 AM by appleblossom

[Demise 1,431]

8 hours ago, Bunty24 said:

Hello, my mother had petitioned for my oldest brother (married with wife and a child who is now 21) and the website says "waiting for interview". My question is that long ago, when my parents received their green card interview, I was under 21 and I missed the opportunity to fly back to the country of my birth. They were told that since I am in USA, I should be able to adjust my status (I was an international student at that time); however, long story short, once they arrived here and i went with them (I had already turned 21) so my application was denied at local USCIS Office. They told me that I could have gone back home and completed the interview process. I met someone recently who had petitioned for her sister and 2 sons back in 2008. They just came to USA in February. The sons were both over 21 but they were able to arrive to USA under their mother. 

Question is that were they approved because they were still living there regardless of age? My niece is currently in USA as an international student but she is concerned that she is 21 already and may be denied even if she flies back to her birthplace when their interview appointment is confirmed.  Sorry for long details but really want to understand how this would work.  Based on my previous question here on this forum, it was suggested that she must go back even for 2 weeks for the interview. As of now, how things are, she is also afraid of return. 

Thank you in advance. 

 

8 hours ago, Bunty24 said:

Just to add to the context. My brother case timeline:

Petition was sent on 10/26/2010
Case was approved on Feb 2015

Priority Date: Oct 26 2010

As of now: waiting for Interview

Country of birth: Bangladesh
if i read the bulletin, they are working on22JUN11 for  F3 category. But not sure if this is same as interview. As of now, we have no update on when interview will take place. It could be months or years again based on current situation.

 

So CSPA works like this: 

 

CSPA age = Real age when visa becomes available (generally the 1st of the month when the visa bulletin final action date passes the priority date, or when the petition was approved, whichever is later) MINUS the time the petition was pending. In order words the priority date has to become current before the beneficiary turns 21 + whatever time the petition was pending. 

 

Then the beneficiary has to "seek to acquire" permanent residency before 1 year after visa becomes available. Yeah I'm definitely wording this a bit awkwardly, but that's because DOS and (sometimes) USCIS let you file based on the "dates for filing" chart, they can't actually issue you the visa or green card until the final action dates chart passes the priority date, in essence they just let you file early, and such early filed application still works to lock in the age provided the other parts hold. 

 

"Seek to acquire" basically just means file I-485, file DS-260, or file I-824. Of note is that the application filed to "seek to acquire" and application that ultimately results in permanent residency does not have to be one and the same. Once locked in the CSPA age doesn't expire and the derivative can immigrate whenever as long as they remain unmarried and the primary beneficiary doesn't naturalize before then (petitions just kinda vanish after naturalization of the principal, so follow to join stops being available). 

 

 

So long story short - in this case the petition was pending roughly 4 years and 3ish months. As long as the priority date becomes current before she's 25 and 3ish months old she'll be able to tag along. She should file DS-260 to lock in the age, and then either go to the interview abroad or when parents enter US file I-485. 

 

Note that filing DS-260 does show immigrant intent, so it's best not to travel abroad after filing that and just stick around in US as an F-1 student. 

Edited Monday at 11:38 AM by Demise

[Bunty24 4]

Thank you so much for your responses. This is really helpful. On a related note: someone had mentioned to me years ago that regarding employment base visa petition, there is a no limit if it is a non-profit organization. wondering if anyone knows about it. just want to look at other options for my niece. 

[OldUser 9,654]

2 minutes ago, Bunty24 said:

Thank you so much for your responses. This is really helpful. On a related note: someone had mentioned to me years ago that regarding employment base visa petition, there is a no limit if it is a non-profit organization. wondering if anyone knows about it. just want to look at other options for my niece. 

Yes, there are H-1B cap excempt employment visas. But it has to be real organization. You cannot set up one to sponsor a relative and workaround immigration rules.

Edited Monday at 02:47 PM by OldUser

[OldUser 9,654]

3 hours ago, appleblossom said:

 

It sounds like you’re still in the US, what’s your status? 

Probably out of status?

[appleblossom 4,309]

5 minutes ago, Bunty24 said:

Thank you so much for your responses. This is really helpful. On a related note: someone had mentioned to me years ago that regarding employment base visa petition, there is a no limit if it is a non-profit organization. wondering if anyone knows about it. just want to look at other options for my niece. 

 

When does her student visa expire? Will she be eligible for OPT? The chances of a company paying to sponsor her straight out of college are pretty slim tbh (given they can hire a US graduate without the cost/hassle), but perhaps if she does OPT there and makes a fabulous impression they might be more inclined to.