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How can our son stay in the United States if he ages out?

Our son is currently 20 years old on an F-1 student visa and he turns 21 on Feb. 23rd, 2017. We are not from Mainland China. We plan to submit an I-526 petition in July 2016. If he ages out before the I-526 is approved, what are his options for staying in the United States?

Answers

  • Avatar

    Xiaosheng Huang

    Immigration Attorney
    Answered on

    The I-526 processing time can be counted out of your son's age. For example, if the processing time of the I-526 is seven months, when your son adjusts his status after the I-526 is approved, he can deduct the processing time of the I-526 from his age. But, currently, the processing time for the I-526 is about 16 months, and the processing time of the I-485 is about at least four months. It is very risky for your son to get the green card. If he ages out, he has to apply for the green card through other ways, for example, marriage with a U.S. citizen, or work.

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    Xiao Wang

    Immigration Attorney
    Answered on

    He has to maintain his F-1 nonimmigration status before the change of status. But since you will file the I-526 before he turns 21, he will be under the protection of Children Status Protection Act (CSPA) from the excessive processing time. When the I-526 is approved and your son is ready to adjust status, the I-526 processing time, for example 16 months, could be subtracted from his age. If the result of the calculation is under 21 years, he qualifies for age out protection under the Act.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    His aging out or not has nothing to do with his staying in the United States. If he remains a full time student, he can remain in the United States. Since you are not from China, it is likely that an immigrant visa number will be immediately available at the time of I-526 filing (and continue to be available). Therefore, his age will "lock-in" at the date the I-526 petition was filed. As long as you seek to acquire lawful permanent resident status for him within one year of the I-526 approval, he still should be considered your dependent for the EB-5 case even if he turns 21 before you all get your green cards.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    For a child to be included, the I-526 mist be filed before he or she turns 21. You may be able to count back from the approval to remain under the protection of the policies, but that will depend on the actual processing time of your case. At least you would have a visa immediately available upon I-526 approval!

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    If a green card for your son is your primary goal, I would suggest you consider making him the applicant. However, I would recommend you speak to your investment immigration attorney regarding your immigration goals so they can guide you in your planning.

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    Ian E Scott

    Immigration Attorney
    Answered on

    His ability to stay in the United States depends on the visa he is eligible for. Examples are H-1B, E-2, his own EB-5, etc.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    You must file the I-526 before he turns 21. I suggest contacting immigration counsel ASAP.

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    John J Downey

    Immigration Attorney
    Answered on

    The best bet is to continue his education and await approval and adjustment of status while in the United States.

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    Ally Bolour

    Immigration Attorney
    Answered on

    Continue on F-1 - these are all issues you need to discuss with your present immigration attorney.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    He is protected if you file before he is 21 and then complete the process within one year after.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Your son should not age out, as the wait line is only for Chinese.

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