Immigration Sinkhole

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My aunt (mother’s sister) sponsored my mom about 12 years ago (in 2000), when I was 14 years old. On June 3, 2012, the date became current. Based on the approved petition, my mother, father, and my younger brother (who was four years old at the time of filing) all immigrated to the United States. However, I was not able to join them because I was advised that I had “aged out.” What should I do?

A I have some good news to share with you. In late September, the Ninth Circuit Court of Appeals ruled in favor of young adults, who due to long delays caused by visa backlogs, lost the opportunity to obtain their Green Cards before they turned 21. Before this decision was made, your only option was to have your parent file a separate petition for you under the family-based 2B preference (assuming that you remained unmarried). Under this court decision, there is an automatic conversion and priority date retention to aged-out dependant beneficiaries. This essentially means that you will automatically be categorized under family-based 2B preference category and will be able to retain your 2000 priority date. So, if you are born in India, then according to the October Visa Bulletin, the family-based 2B category has a priority date of September 15, 2004. This means that under this ruling, you would be able to reunite with your family immediately, once the paperwork is completed. At the time of writing this article, I am not sure if the government will ask the U.S. Supreme Court to review the Court’s decision. If that happens, then it may take some time before this issue gets resolved.

Q  I started my employment based Green Card process with Employer A four years ago. My I-140 is approved in EB-3 category and carries a priority date of May 2008. If I change my employer, will I be able to use the same priority date? If yes, do I have to be employed in the same position?

A The Green Card process is for prospective employment, and just because you completed your first and second steps with an employer does not mean that you have to remain with the same employer in order to maintain your priority date. You can switch your employer or move to a different position, and you would still be able to retain your priority date. This is possible even if your employer revokes their I-140 petition, as long as there is no finding of fraud or willful misrepresentation.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.

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