is I485 still valid for the kids over 21 years

[mitesh67]

Hi All,

I kindly request you to advise me on following.

My I-140 is approved unde EB-3 cateogry. I filed I-485 for my self and family in Aug-2007.

Mine was concurrent filing 9I-485 filed before I-140 Approved). We all have approved AP and EAD.

I-140 Applied on 26-Feb-2007

I-140 Approved on 02-Apr-2008

Priority Date : 24-SEP-2006 under EB3 category

I-485 : Applied on 08-Aug-2007

My son is going to turn 21 soon.

1. Whether my son's I-485 remains valid or he will be agead out and drop off automatically?
   
2. Do I need to file any thing else to keep his I-485 valid ?
   

Looking forward to your advise ASAP.

Thanks,

Mitesh

[Belle]

1. It remains valid. You must read about the child protection act to understand steps that may lead for the I-485 to be denied (like a marriage). Actually, you don't have to - it's your son's job now.

2. No.

[mitesh67]

Hi,

Thanks a lot for your reply.

I read CSPA details but have some confusion. I have read following link.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=1f0c0a5659083210VgnVCM100000082ca60aRCRD&vgnextchannel=1f0c0a5659083210VgnVCM100000082ca60aRCRD

Following section describes in a limited way, about child status protection but not very clear.

Is there any thing esle I need to refer ?

Please advise.

Many thanks again for your reply and help.

Mitesh

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Form I-730, Refugee/Asylee Relative Petition, and Section 209 Adjustment

For Forms I-730 or I-485, Application to Register Permanent Residence and Adjust Status, (under Section 209) that were pending on or after August 6, 2002, the child’s age is determined by using the age on the date the principal filed Form I-589 or Form I-590, as long as the child was unmarried and under 21 at that time and remains unmarried.

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[catx]

The CSPA is confusing to say the least, especially with respect to "aging out". A dependent child's age is fixed / locked a the time of I-485 filing, and thus will not age out as long as the I-485 remains pending and valid, and they will receive derivative permanent residency (green card) when the I-485 is approved for the primary beneficiary. If the child's dependency status changes while the I-485 is pending, e.g. through marriage, then they are no longer able to receive derivative permanent residency (green card).

(The CSPA rules regarding aging out during and after I-140 petition approval, but prior to being able to file an I-485, are far less forgiving, as my son and I know all too well. There is little or no child protection until after your priority date becomes current.)

[Belle]

Just to be crystal clear - there are no such thing as kids over 21 years of age. Those are adults, fully responsible for their actions. You don't owe him anything, not even a green card. My best advice for your is to give a copy of the law to your son, and let him figure out. If he can't by himself, then he can pay for a legal consultation, so that someone else explains it to him.

[mitesh67]

Dear Friends,

Thanks a lot for your time and reply. I sincerely appreciate it.

My PD is 09/24/2006 - EB3-India.

I-140 Applied on 26-Feb-2007 and I-140 Approved on 02-Apr-2008.

Length of time for I-140 approval = 401 days (CSPA will add these many days only over age of 21 ???)

I-485 : Applied on 08-Aug-2007

(if I understand the reply correctly, my son's age is 13 years at time of filing I-485 and will be locked)

He will be continuing enjoying AP and EAD renewal even after he will trun 21 becuase I-485 is valid (provided he will not get married) - Is this understanding correct ?

I am really confused and disheartended by the following reply from one attorney and like to have a second opinion / validation.

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Since your son’s birthday is on 05/17/1994, he will turn 21 on 05/17/2015. If you add 401 days (the length of time the I-140 was pending), his CSPA age is 06/21/2016. Therefore, he can only obtain a green card with you if your priority date becomes current before 06/21/2016. He can continue to renew his EAD and Advance Parole until that date. After, 06/21/2016, he will no longer be eligible for the EAD and AP since he has aged out.

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Thanks a lot again and looking forward to valuable guidance !!!

Mitesh

[Belle]

Dear Friends,

Thanks a lot for your time and reply. I sincerely appreciate it.

My PD is 09/24/2006 - EB3-India.

I-140 Applied on 26-Feb-2007 and I-140 Approved on 02-Apr-2008.

Length of time for I-140 approval = 401 days (CSPA will add these many days only over age of 21 ???)

I-485 : Applied on 08-Aug-2007

(if I understand the reply correctly, my son's age is 13 years at time of filing I-485 and will be locked)

He will be continuing enjoying AP and EAD renewal even after he will trun 21 becuase I-485 is valid (provided he will not get married) - Is this understanding correct ?

I am really confused and disheartended by the following reply from one attorney and like to have a second opinion / validation.

*******************************************************************************************************************

Since your son’s birthday is on 05/17/1994, he will turn 21 on 05/17/2015. If you add 401 days (the length of time the I-140 was pending), his CSPA age is 06/21/2016. Therefore, he can only obtain a green card with you if your priority date becomes current before 06/21/2016. He can continue to renew his EAD and Advance Parole until that date. After, 06/21/2016, he will no longer be eligible for the EAD and AP since he has aged out.

*********************************************************************************************************************

Thanks a lot again and looking forward to valuable guidance !!!

Mitesh

Your PD was current when you filed - otherwise, you would not be able to file, would not you? In other words, it BECAME CURRENT in 2007.

My question - so you are talking about a non-even that may or may not happen in 4 years, and you need advice NOW? WHY?

"My son is going to turn 21 soon."

Really? Since when 2015 is "soon"?

[ebhelp]

mitesh67,

Don't worry what others and Belle say here, all guessing. What I say here below is good for you to know. You don't need to do anything upon your son turns 21.

USCIS will automatically review the file and send you a ltter saying his eligibility under CSPA.

If your -485 is pending by the time he turns 21 and you have already included him in your pending I-485 then he is good to continue on your adjustment of status.

I am not an attorney but this just right what I say generally. If your pending case is still all in order and you son has not changed status(like marriage, student visa etc) then he is good to carry your pending 485. Let us know if you hear anything else.

[mitesh67]

Hi All,

This is really confusing as I got 2 opposite replies from 2 attornies.

Reply 1 :

Under the circumstances, the Child Status Protection Act will not freeze your son's age. This does not mean that it may not apply in the future. The best case scenario would be if the priority date becomes current before your son turns 21, and we file a new adjustment of status application for your son, this could freeze his age at the time of filing the adjustment of status application. As you are aware, the priority dates in the EB-3 (India) category have not moved very much over the course of the last several years. However, if the pending application for labor certification is approved and your company then files an I-140 on your behalf, we can transfer your old priority date to the new EB-2 petition. As it is more likely that your priority date could become current under EB-2 (India) before your son turns 21, if we file a new adjustment of status for your son at that point, this could preserve his age under the CSPA in the case of visa retrogression. However, there are many variable involved, so this is just our best case scenario, and we can certainly revisit this plan in the future if circumstances change.

Reply 2 :

Since your son’s birthday is on 05/17/1994, he will turn 21 on 05/17/2015. If you add 401 days (the length of time the I-140 was pending), his CSPA age is 06/21/2016. Therefore, he can only obtain a green card with you if your priority date becomes current before 06/21/2016. He can continue to renew his EAD and Advance Parole until that date. After, 06/21/2016, he will no longer be eligible for the EAD and AP since he has aged out

Is there any one who can guide me more ?

Thanks,

[JoeF]

The CSPA is a complex thing. Talk with a good lawyer, e.g., from the law firm that runs this board.