Recently, a client left a message on our Wang Law LLC website, asking about the following issue: When she married her current husband, her daughter was under 18 years old. At that time, her husband was a green card holder and filed an I-130 form for both her and her daughter, with her daughter listed as a derivative beneficiary. Now, her husband has become a U.S. citizen, and their visa priority date has been reached. However, her daughter’s information is not visible in the National Visa Center (NVC) application. She wants to know if this is an error and what steps to take next.
Let’s break down this case and provide a solution.
1. Establishment of Stepchild Status
The client’s daughter was under 18 when she married her current husband, meaning her daughter qualifies as a stepchild under U.S. immigration law. Whether the stepfather is a green card holder or a U.S. citizen, he can file an immigration petition for the stepchild, and the process is the same as for biological children.
2. Green Card Holder Filing an I-130 Petition
When the client’s husband was still a green card holder, he filed an I-130 petition for both the client and her daughter. This was permitted because a green card holder can file one I-130 form for both the spouse and their unmarried children under 21 years old, with the spouse as the primary beneficiary and the children as derivative beneficiaries. This approach simplifies the process and reduces the number of forms and fees.
3. Issue: The Green Card Holder Becomes a U.S. Citizen
Now that the client’s husband has become a U.S. citizen, a problem has arisen. Under U.S. immigration law, green card holders can include children as derivative beneficiaries on the spouse’s I-130 petition. However, U.S. citizens must file a separate I-130 petition for each family member. This means that while the client (the spouse) can continue with the original I-130 petition, her daughter no longer qualifies as a derivative beneficiary. This is why her daughter’s information is not appearing in the NVC visa application.
4. Solution: File a Separate I-130 for the Daughter
Since the client’s husband is now a U.S. citizen, he must file a separate I-130 petition for the daughter. While this means starting the process over for the daughter, she can still immigrate to the United States. However, this new application will go through the full review process, which may take a year or longer.
5. Potential Risk: The Child’s Age
A critical point to consider is if the daughter is already 21 or will turn 21 before the new I-130 petition is processed. If she turns 21, she will no longer qualify as an “unmarried child under 21” and will be classified as an “adult child.” This classification will significantly extend the waiting time, potentially up to several years. Currently, the wait for adult children can be as long as seven years.
6. The Application of the Child Status Protection Act (CSPA)
In this case, the client’s husband should work with an immigration lawyer to assess whether the Child Status Protection Act (CSPA) applies to the daughter’s case. The CSPA helps prevent children from “aging out” due to delays in the immigration process. Here’s how CSPA could apply:
- Calculating the CSPA Age: The CSPA age is calculated by subtracting the time it took USCIS to process the I-130 petition from the child’s actual age. For example, if USCIS took two years to process the I-130, the daughter’s CSPA age could be reduced by two years.
- Unmarried Status: CSPA only applies to unmarried children. Therefore, it is crucial that the daughter remains unmarried throughout the immigration process.
- Submitting Additional Documentation: If CSPA protection is confirmed, the lawyer should submit additional documentation to USCIS or the NVC proving that the daughter qualifies for CSPA protection. This documentation includes the I-130 approval notice, the CSPA age calculation, and proof of the child’s unmarried status.
- Submitting a CSPA Request: If the NVC did not automatically recognize the daughter’s CSPA eligibility, the lawyer can submit a request to the NVC, including legal and factual evidence showing that CSPA applies.
7. Timely Filing of a New I-130 Petition
Even if CSPA applies, it is advisable to file a new I-130 petition for the daughter as soon as possible. This is a precautionary measure in case the CSPA does not fully protect the daughter’s eligibility. Having a new petition in the pipeline can help avoid further delays.
Conclusion:
The issue in this case arose due to the husband’s change in status from green card holder to U.S. citizen, which caused the daughter to lose her derivative beneficiary status. The solution is to file a separate I-130 petition for the daughter while also seeking CSPA protection to minimize delays. As immigration lawyers, you can help the client ensure that her daughter’s rights are protected through careful evaluation and prompt action.
If you are facing similar family immigration issues, feel free to consult Wang Law LLC for professional guidance and assistance in ensuring your immigration applications proceed smoothly.