CR-2 Confusion…Help Please!!

[Li'sZhangfu]

When I married my SO in Oct 2004, she had a daughter that was 20 years old. I filed I-30 petitions for both my wife and daughter, and they were both sent to GUZ together. You can see the progress on my time line.

My SO is very worried that our daughter will age out if her CR-2 interview isn’t before her birthday on October 23rd, and won’t be able to come here with my SO and me.

I read on the NVC web site that I need to let them (NVC) know 60 days before her birthday. Then they would try to expedite my SO and daughter’s cases before the daughter’s birthday.

But I also read on another government site, about the Child Status Protection Act, which states she will be treated as a child under 21 for immigration purposes, as long as she remains unmarried, and would protect her. So she would be able to come here with my SO and me even after she turned 21.

Which way is it? Should my SO and me worry?

[david_dawei]

When I married my SO in Oct 2004, she had a daughter that was 20 years old. I filed I-30 petitions for both my wife and daughter, and they were both sent to GUZ together. You can see the progress on my time line.

My SO is very worried that our daughter will age out if her CR-2 interview isn’t before her birthday on October 23rd, and won’t be able to come here with my SO and me.

I read on the NVC web site that I need to let them (NVC) know 60 days before her birthday. Then they would try to expedite my SO and daughter’s cases before the daughter’s birthday.

But I also read on another government site, about the Child Status Protection Act, which states she will be treated as a child under 21 for immigration purposes, as long as she remains unmarried, and would protect her. So she would be able to come here with my SO and me even after she turned 21.

Which way is it? Should my SO and me worry?

140917[/snapback]

I put together some "age out" issues in the FAQ..

 

 

Q.5.10 What is this issue about “aging out” by the children?

 

A.5.10.1

Now for the problem. The son just turned 21. Why was he allowed a k2 visa from GZ just before he turned 21 I don’t know. But when they tried to file for AOS the lawyer told them "he is to old" meaning he is older than 18 or 21 not sure. But GZ just sent him off to the USA and now the lawyer is saying his K2 will expire soon (the standard 90 days) and despite the marriage etc. he must return to China and either: wait for the mother to finish the AOS and then apply for his entry or reapply for a different visa category (student/work/?)

 

A.5.10.2

It seems to me that since he was under 21 at the time of his mother's marriage that she and he could file for AOS, then he could stay in America on the basis of this. I think the lawyer is wrong about him having to leave.

 

A.5.10.3

She was still 20 when we filed for AOS. Given Atlanta's track record, she'll be about 30 when she finally gets adjusted, but I believe as long as the paperwork is filed before turning 21, a K-2er should be okay.

 

I do want to add an edit. If the AOS was filed after the child turned 21, this may be a problem. I can't tell from the post if this was the case, but, if so, the child might have "aged out" and may not be eligible for an adjustment of status based on his K-2 status. This is one of those murky areas.

 

A.5.10.4

The Service will now use the date of the filing of a Form I-130, Petition for Alien Relative, to determine the age of a beneficiary adjusting as the child of a United States citizen (USC). For example, if a Form I-130 is filed for the child of a USC when the child is 20, that child will remain eligible for adjustment as an IR-2 or as an IR-7, even if the adjustment does not occur until after the child turns 21, provided the child remains unmarried.

 

A.5.10.5

if a lawful permanent resident (LPR) files a Form I-130 for her 16-year old daughter and then naturalizes when the daughter is 20, that daughter will remain eligible for adjustment as an IR-2 or as an IR-7, even if the adjustment does not occur until after she turns 21.

 

A.5.10.6

if a USC files a Form I-130 for his 18-year old married son and that son subsequently obtains a divorce prior to turning 21, that son will be classifiable as an IR-2 or as an IR-7, even if the adjustment does not occur until after he turns 21.

 

A.5.10.7

For example, if a Form I-130 was filed in 1998 when the child was 20, the priority date became available today, and the Form

I-130 was not adjudicated until today, the beneficiary’s “age” when determining preference category would be 20 (the beneficiary is 24 today, but the petition was pending for the 4 years), provided the “child” applies for an immigrant visa or for adjustment of status within one year of the priority date becoming available. If, however, this same Form I-130 had been adjudicated in 2000, the beneficiary’s “age” when determining preference category would be 22 (the beneficiary is 24 today, but the petition was pending for only 2 years).

 

A.5.10.8

Example 1:

For August 2002, the priority date for unmarried sons and daughters of LPRs is December 8, 1993 and the priority date for unmarried sons and daughters of USCs is July 1, 1996. Thus, if a LPR files a Form I-130 for his 24-year old, unmarried French son and then naturalizes, the son™s immigrant category would automatically transfer from the second preference to the first preference. This would be to the advantage of the beneficiary and he would most likely not prevent such automatic conversion.

 

Example 2:

For August 2002, the priority date for Filipino unmarried sons and daughters of LPRs is December 8, 1993, but the priority date for Filipino unmarried sons and daughters of USCs is November 1, 1989. Thus, if a LPR files a Form I-130 for his 24-year old, unmarried Filipino son and then naturalizes, the son would most likely request that the automatic conversion to the first preference category not occur because a visa would become available to him sooner if he remained in the second preference category than if he converted to the first preference category. In this case, the son would continue to be considered a second preference immigrant.

 

A.5.10.9

More info:

 

How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?

http://uscis.gov/graphics/howdoi/agingout.htm

 

 

The Child Status Protection Act:

http://uscis.gov/graphics/lawsregs/handboo...A092002_pub.pdf

 

 

DOS Cable on CSPA:

http://www.shusterman.com/cspa-dos103.html

[david_dawei]

Based on Frank's comments (and catch of child vs step child), I am removing my original posted comments.. which seem to suggest the wrong info.

 

Here is the definition for child and step child, as Frankly rightly distinguishes:

 

 

Remember that in immigration law a child must be unmarried. The stepparent/stepchild relationship must be created before the child reaches the age of 18.

 

Child:

Unmarried child under the age of 21 years. A child may be natural born, step or adopted. If the child is a stepchild, the marriage between the parent and the American citizen must have occurred when the child was under the age of 18. If the child is adopted, he/she must have been adopted with a full and final adoption when the child was under the age of 16, and the child must have lived with and been in the legal custody of the parent for at least two years. An orphan may qualify as a child if he/she has been adopted abroad by an American citizen or if the American citizen parent has filed an immediate-relative (IR) visa petition for him/her to go to the United States for adoption by the American citizen.

In certain visa cases a child continues to be classified as a child after he/she becomes 21, if the petition was filed for him/her when he/she was still under 21 years of age. For example, a IR-2 child of an American citizen remains a child after the age of 21 if a petition was filed for him/her on or after August 6, 2002, when he/she was still under 21 years old. The child must meet other requirements of a child as listed above.

 

Stepchild:

A spouse’s child from a previous marriage or other relationship. In order for a stepchild to be able to immigrate as a “child,†the marriage creating the stepchild/stepparent relationship must have happened before the stepchild was 18 years of age.

 

 

 

 

 

 

 

Please get confirmation from other members or appropriate legal advice...

Edited July 27, 2005 by DavidZixuan (see edit history)

[frank1538]

This is a complicated area, so what I think may be total BS. However, I believe immigration law distinguishes between a child (your natural born child) and a step-child (your child through marriage) and an immigrant visa like a CR-2 and a non immigrant visa like the K-2 or K-4.

 

This is my read, and, again, it may be total BS, so don't get depressed by what follows.

 

For CR-2 purposes, you can file the I-130 for your child up to age 21. At that point, I think the Child Status Protection Act kicks in and keeps the status as "child" while the petition is being processed.

 

For CR-2 purposes, you can file the I-130 for your step-child up to age 21 provided the step-child was under age 18 at the time of marriage. The CSPA then kicks in and keeps the status while the petition is processed.

 

For K-2 and K-3 purposes, the alien's children and your step-children (under 18 or over 18 at the time of marriage) under the age of 21 can be given the visa. However, the I-485 must be filed before the child or step-child turns 21. The CSPA then kicks in and keeps the status while the AOS is processed.

 

I had a similar issue with KK, my step-daughter, who was 20 when she received her K-2. We filed the I-485 before she turned 21 and the CSPA kicked in to keep her status while the AOS was processed. She eventually received her green card.

 

Rich, I hope my read is wrong, but if it is correct, I think the only alternative may be for your wife to file the I-130 for her daughter after your wife becomes an LPR.

Edited July 27, 2005 by frank1538 (see edit history)

[Li'sZhangfu]

I had a similar issue with KK, my step-daughter, who was 20 when she received her K-2. We filed the I-485 before she turned 21 and the CSPA kicked in to keep her status while the AOS was processed. She eventually received her green card.

 

Rich, I hope my read is wrong, but if it is correct, I think the only alternative may be for your wife to file the I-130 for her daughter after your wife becomes an LPR.

140931[/snapback]

Thank you for the information.

So the I-130 petition I filed for my stepdaughter and was approved as a CR-2,will be null and void unless she gets a interview before she turns 21. Then my SO will have to start the process all over!!!!!!

 

Now I know another way the US government makes money on these visas!!

[david_dawei]

I just want to make sure I follow your thinking...

 

If the step daughter was 20 y.o. at the time of marriage, then she is not eligible for protection under the CSPA.. since she needed to be under 18 at the time of the marriage...

 

And your thinking is that she has to be at least under 21 at the time of her interview to get the CR1 visa?

[frank1538]

Here's a link that sheds some light on this and acknowledges the "gap" problem for step children between the ages of 18 and 21: http://www.ilw.com/lawyers/articles/2002,1009-mehta.shtm

 

The portion that I find troublesome is as follows:

 

"Under INA Section 101( B )(1), a step-child can only be considered a "child" for immigration purposes if the relationship was formed before the child reached the age of 18. Therefore, when the step relationship is formed after the age of 18, the U.S. step-parent may not be able to sponsor the step-child although he or she could still accompany the natural K-3 parent on a K-4 visa. A child caught in such a gap would presumably be sponsored by the natural parent when he or she becomes a permanent resident."

 

Since you seem to have an approved I-130 for your step daughter, there presumably is something else out there. Maybe it's an approval for K-3/4 purposes even though you aren't filing for a K-3/4. Maybe the CR-2 is derivative to the CR-1 so that approval of her mom's I-130 automatically approves her daughter's. I really don't know. Maybe a good family based immigration lawyer can give you the correct information.

Edited July 28, 2005 by frank1538 (see edit history)

[frank1538]

Rich, I just noticed your timeline. I didn't realize you had filed for K-3 as well. This is very good news because it is clear that a K-4 visa can be issued to your step daughter as long as she's under 21. I don't know when she will turn 21, but I'd do everything I could to make sure she gets her K-4 and enters the US before then... and then quickly files the I-485 before she turns 21.

[david_dawei]

The daugther was at least 20 at the wedding (Oct 2004).. The K3/K4 is still at NVC for namecheck...

 

So, there is still at least 5 months in GUZ that must occur...

[frank1538]

Rich, your problem has been bothering the hell out of me. It just didn't make sense that your step daughter could age out. I went back and looked at the DOS cable on the CSPA ( http://www.elirich.com/feb5c.htm ), and it seems there may be an out. Pay special attention to the section titled "CSPA Section 3 Cases".

 

If you can determine that your step daughter's status is a derivative status (derivative to her mom's), the CSPA sounds like it might lock her age even though she would not meet the definition of a step child since she was over 18 when you got married.

 

At the bottom of the cable is a worksheet that goes through the mechanics of calculating her "immigration age" and requires that you know her date of birth, the date of petition approval, the date the petition became current, and the date a visa became available (priority date?).

 

If I am reading this correctly, it sounds like you step daughter may be okay, BUT PLEASE CHECK WITH A GOOD IMMIGRATION LAWYER WHO KNOWS ABOUT HOW THE CSPA WOULD APPLY.

 

Good luck.

[Li'sZhangfu]

Thank you for the information again Frank. I also found some information on the NVC web site, and sent a letter to them yesterday EMS.

 

August 1, 2005

National Visa Center

32 Rochester Avenue

Portsmouth, NH 03801

Reference: NVC Notification Of Child’s Upcoming Birthday

To Whom It May Concern:

Case Number: GUZxxxxxxxxxx

Beneficiary’s Name: Li McGee

Visa Category: CR-1

Birth date: 11/xx/xxxx

 

Case Number:GUZxxxxxxxxxx

Beneficiary’s Name: Wei Wu

Visa Category: CR-2

Birth date: 10/xx/xxxx

 

Case Number: GUZxxxxxxxxxx

Beneficiary’s Name: Li McGee

Visa Category: K-3

Birth date: 11/xx/xxxx

 

From The National Visa Center Web Site:

“If you have children who intend to immigrate with you to the United States, or to join you in the United States at a later date, please read this important information.

In order to immigrate with you to the United States, or to follow you at a later date, your children must be:

· Unmarried

· Eligible to be listed under your visa classification, and

· Under the age of 21 at the time they enter the United States.

Note: Children of mothers, fathers or spouses of United States citizens, must have separate immigrant visa petitions filed on their behalf.

Note : If visas will be available in your category prior to your son or daughter’s birthday, we will expedite processing of your case in order to ensure that your son or daughter will be able to immigrate with you. Unfortunately, we cannot assist you if visas are not available in your category prior to your son or daughter’s birthday.”

 

My wife and stepdaughter have had petitions approved for the CR-1 and CR-2 visas. These cases were sent to the Consulate at Guangzhou, China on June 3, 2005. If my stepdaughter isn’t protected by the Child Protection Act, I am asking that these cases be expedited and interviews granted before my stepdaughter’s twenty-first (21) birthday on October 23, 2005. Since these cases are immediate family based, there should be visas available for them.

I look forward to your response to this letter in a timely manner, since time is very important in this matter.

 

 

Sincerely,

Rich McGee

 

 

I will post the answer I get from them...when I get it. Maybe it will help someone else in their journey.

 

Rich

[frank1538]

This is very encouraging news. Good luck.