26 Jun 2019 Mother’s eight month delay in filing petition causes extra 12-year wait for daughter
I recently had a consultation where a mother’s confusion and lack of understanding of immigration law resulted in her delaying filing a petition for her minor child for approximately eight months. The child “aged out” and could not qualify for benefits under the Child Status Protection Act (CSPA). The child was then reclassified as an adult, and now it is estimated her priority date will become current in 2028. Had the mother acted promptly, the child would have been in the U.S. as of 2016.
In her case, the mother got her green card in July 2014 through a U.S. citizen daughter’s petition. (That petition did not cover or include her younger daughter.) However, she waited an additional eight months, until March 2015, to petition her younger daughter, who would be turning 21 in mid-2016. The reason was that she thought she had to first have a job and be financially established before she could file a petition. This confusion and misunderstanding caused the problem. She could have filed the petition for her younger child as soon as she got her green card. As the petitioner, she would submit an affidavit of support only when the priority date is current. An affidavit of support includes demonstrating financial ability to support the beneficiary. However, if a petitioner is not earning enough, they could always get a co-sponsor on the affidavit of support.
Here, the mother had a U.S. citizen daughter who could have acted as a co-sponsor. They could have filed the petition right away instead of waiting several months.
Another option now would be an employer-sponsored green card through PERM or labor certification for the daughter, which would take about 2-3 years. The employer does not need to be a major corporation. It can even be a sole proprietorship if the employer has the ability to pay. In addition, jobs such as caregivers are still available and the waiting time for a caregiver’s green card is about the same as for a college graduate or skilled worker.
The moral of the story is rather than “guessing” about what the best course of action is, or listening to friends or relatives as what they think may be best, people should consult with an attorney about their immigration issues. As can be seen from the above example, a mother misunderstood legal requirements and delayed filing a petition. Because of that misunderstanding, her young daughter has to wait at least 12 more years for a visa.
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