SHAUTSOVA’S UPDATE
VOLUME 92, April 2019
Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235
175 Eileen Way, Syosset NY 11791
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Proposed Immigration Reform Updates
- RECAPTURING PRIORITY DATE FOR AN AGED OUT CHILDREN OF LPR
Author: New York Family Immigration Attorney Alena Shautsova
Priority dates in immigration play vital role: when priority date is current, a person who had a petition filed for them can adjust their status or file for an Immigrant visa. In some categories, people wait for years or even decades for a priority date to become “current.”
In certain situation, an aged our child can recapture a priority date due to a petition that was filed long time ago.
Consider this example: Pedro, a green card holder, sponsored his wife Maria and their son Antonio. Pedro filed for Maria and Antonio one petition: because he was only a green card holder he was able to list Antonio and Maria on the same petition. After about three years of waiting, the priority date for the petition became current, but Antonio now is well over 21 and cannot be his mother’s dependent. Antonio would like to come live with his dad in the US: the wait time for adult unmarried children now is about 8 years… But here is the trick: Pedro can file for Antonio, and ask the government to recapture (keep) the first priority date!
This is what the law says:
8 CFR 204.2(a)(4) …”A child accompanying or following to join a principal alien
under section 203(a)(2) of the Act may be included in the principal alien’s
second preference visa petition. The child will be accorded second
preference classification and the same priority date as the principal alien.
However, if the child reaches the age of twenty-one prior to the issuance of
a visa to the principal alien parent, a separate petition will be required.
In such a case, the original priority date will be retained if the
subsequent petition is filed by the same petitioner. Such retention of
priority date will be accorded only to a son or daughter previously eligible
as a derivative beneficiary under a second preference spousal petition.”
Note: the prior I-130 should not be terminated or revoked. 8 CFR § 204.2(h).
It is not possible to recapture priority dates in every case: for example, when a son of a LPR marries, then the whole petition process becomes a nullity: a green card holder cannot sponsor a married son. But in some situations, the law does help to save the old date. It is especially helpful to sons/daughter of US citizens. For example, Galina sponsored her unmarried under 21 years old son. However, when the son was 20 years old, he got married: now he is automatically transferred to F3 category, but he can still keep his first priority date!
If you believe you may benefit from the old petition, call us to book a consultation at 917-885-2261.
- New Change of Status I-539 Form
Author: US Visa Attorney Alena Shautsova
A person who is in the United States in lawful status may wish to change that status, for example, from a tourist to a student, or to extend that status, for example, to stay in the US and travel longer or to continue his/her education. In such cases, a person has to file a special form I-539 and submit appropriate fees. Recently, the US government made some significant changes to the process that will affect every applicant for change of status.
First of all, the government now is going to collect extra fees for biometrics. The current extra fee is $85. It means, for example, that where there is a family who is changing status, each eligible member of the family must submit separate biometrics fee and comply with biometrics requirements: appear for fingerprints according to the notice that will be
issued by the government. Please note that a separate biometrics fee is required for each application: in case of a B1-F1 change of status, where an applicant has to submit two forms, two biometrics fees will have to be paid. All applicants who will be filing for extensions of status from now on will have to submit the biometrics fee, even if they submitted their initial applications prior to this new rule.
Second, now, dependents that previously were all listed on the same form will have to submit separate I539A forms. The good news is that there is no separate fee for I 539A forms.
If an applicant is seeking to reinstate their status to F1, he/she should request the D/S as a validity time for his/her reinstated status.
Finally, if in a family there is child who is turning 21 shortly, a separate form for change of status has to be submitted for such a child. There reason is that otherwise, all dependents’ validity periods will be cut off to match the end of status for the aging out dependent.
If you have questions regarding I539 form and procedure, please book an appointment by calling us at 917-885-2261 or emailing at office@shautsova.com
- Visa Bulletin: policy/bulletin.html
- The Administrative Appeals Office http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=dfe316685e1e6210VgnVCM100000082ca60aRCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD
- Labor Department Processing Times
The following link provides approximate times for PERM processing periods:
http://icert.doleta.gov/#fragment-2
- Nonimmigrant Visa Wait Times
Depending on your location, the US Department of State provides the following approximate visa wait times:
http://travel.state.gov/visa/temp/wait/wait_4788.html?post=Kyiv&x=86&y=13
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Visit our resources on Asylum, Recent Changes in Immigration laws and Processing times:
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