Dannies sister got married

[markndannie]

Dannies sister married a USC while we were in China recently. She has a son who will be 21 next feb. Can he file the 130 for him now given the timelines? I looked at the immigration site but not sure what the repercussions are if he is over 21 before the interview. Thanks
Mark

[Guest Rob & Jin]

Randy has the answer to this

 

my take is they can petition , just will be a very long wait. even once she becomes a usc, which wont be for years after she gets here.

 

Good luck

[Randy W]

What matters is his age at the time of marriage, and his age at the time the I-130 is filed.

 

His age is frozen as of the date the I-130 is filed by the CSPA (Child Status Protection Act). Under 21, and a visa number is available immediately, so he could come within a year. 21 or over, his category is over 21 child of an LPR, and the wait becomes 8 to 10 years.

 

If he is under 18 (no) when they are married, he is considered the USC's child "for immigration purposes". and he may file an I-130 for his "child".

 

If he is over 18, the mother may file an I-130 for her child AFTER she becomes an LPR. But he's likely to have his 21st birthday before she can do this - placing him in the over 21 child of an LPR (8-10 year wait) category.

 

If she comes over on a K-3 visa, he is eligible for a K-4 (until he becomes 21). However, they may deny his application since K-4's can not adjust status without an I-130 filed before his 21st birthday.

 

So it looks like his mother will have to get her green card, file an I-130, and his turn for a visa will come up in about 8 to 10 years.

 

But yes, if she becomes an American citizen, that will shorten the wait to about 5 years from the time the original I-130 was filed for him - this is an automatic change of category for him when she becomes a citizen).

 

Wish I had better news for them.

Edited June 28, 2008 by Randy W (see edit history)

[markndannie]

What matters is his age at the time of marriage, and his age at the time the I-130 is filed.

 

His age is frozen as of the date the I-130 is filed by the CSPA (Child Status Protection Act). Under 21, and a visa number is available immediately, so he could come within a year. 21 or over, his category is over 21 child of an LPR, and the wait becomes 8 to 10 years.

 

If he is under 18 (no) when they are married, he is considered the USC's child "for immigration purposes". and he may file an I-130 for his "child".

 

If he is over 18, the mother may file an I-130 for her child AFTER she becomes an LPR. But he's likely to have his 21st birthday before she can do this - placing him in the over 21 child of an LPR (8-10 year wait) category.

 

If she comes over on a K-3 visa, he is eligible for a K-4 (until he becomes 21). However, they may deny his application since K-4's can not adjust status without an I-130 filed before his 21st birthday.

 

So it looks like his mother will have to get her green card, file an I-130, and his turn for a visa will come up in about 8 to 10 years.

 

But yes, if she becomes an American citizen, that will shorten the wait to about 5 years from the time the original I-130 was filed for him - this is an automatic change of category for him when she becomes a citizen).

 

Wish I had better news for them.

ok Dave is going to file the 130 for Dannies sister and her son next week. Her son Lui is now 20. So he can come over along with his mother?

thanks for your help Randy

mark

[Randy W]

What matters is his age at the time of marriage, and his age at the time the I-130 is filed.

 

His age is frozen as of the date the I-130 is filed by the CSPA (Child Status Protection Act). Under 21, and a visa number is available immediately, so he could come within a year. 21 or over, his category is over 21 child of an LPR, and the wait becomes 8 to 10 years.

 

If he is under 18 (no) when they are married, he is considered the USC's child "for immigration purposes". and he may file an I-130 for his "child".

 

If he is over 18, the mother may file an I-130 for her child AFTER she becomes an LPR. But he's likely to have his 21st birthday before she can do this - placing him in the over 21 child of an LPR (8-10 year wait) category.

 

If she comes over on a K-3 visa, he is eligible for a K-4 (until he becomes 21). However, they may deny his application since K-4's can not adjust status without an I-130 filed before his 21st birthday.

 

So it looks like his mother will have to get her green card, file an I-130, and his turn for a visa will come up in about 8 to 10 years.

 

But yes, if she becomes an American citizen, that will shorten the wait to about 5 years from the time the original I-130 was filed for him - this is an automatic change of category for him when she becomes a citizen).

 

Wish I had better news for them.

ok Dave is going to file the 130 for Dannies sister and her son next week. Her son Lui is now 20. So he can come over along with his mother?

thanks for your help Randy

mark

 

No sorry if I was unclear there. Because he was OVER 18 when they married, he is NOT the USC's "child for immigration purposes". His mother must file the I-130 AFTER she becomes an LPR. He will most likely be over 21 at that time.