World Journal Weekly Q & A - May 29, 2011
Q & A 1.
Where Labor Certification of Parent was Applied in 2000 but Child was 22 at Time of Approval, Can She Still Qualify as Child Under CSPA or if not, Can She Still Qualify to Adjust Status Under Section 245(i) Where Another Petition is Later Filed for Her?
Lily reader asks:
I came to U.S. in 7/1999 with my parents under B1 visa. Later we overstayed. In 2000, my mother applied for labor certification and was approved in 2007. By then, I was already 22 years old. However, my family of three filed I-140, I-485 and I-765 together and paid 245(i) fine $1,000. My mother’s I-140 was approved and before I-485s were adjudicated, my family of three all received employment authorization cards (EAD) and social security cards.
Unfortunately, in 2009 I received notice from USCIS stating I was aged out and my I-485 was denied. Later, another notice said that my case was transferred to USCIS-NBC and I did not know why. My EAD expired in 2/2011. Will I be able to renew it? If my mother, who is a green card holder, files I-130 for me now, do I still qualify for 245(i)?
Under the Child Status Protection Act (CSPA), the time that the I-140 petition pended with U.S.C.I.S. can be deducted from your age in determining eligibility for immigration as a derivative child. Unfortunately, the time that a labor certification application is pending cannot be counted as a credit against age. In your case, you stated that by the time the labor certification was approved in 2007, you were already 22 years old. It appears clear that under current reading of the CSPA, you would not qualify as a child. The EAD is only an ancillary benefit of the I-485 filing. Since the I-485 is denied, it would appear that any subsequent application for an EAD but also be denied. You have also asked whether an I-130 petition by your mother, who is a green card holder, would still qualify you for Section 245(i) benefits. It appears that you would still qualify under Section 245(i) as long as you were in the United States on December 21, 2000. You would of course have to wait for the priority date under the F-2B category for sons and daughters of permanent residents over the age of 21 and unmarried to become available before you could file another I-485 application to adjust status along with paying the fine amount with I-485 Supplement A.