Legal Eagle - Few to benefit from status protection Act

US immigration attorney Nandini P Nair gives an update on the Child Status Protection Act

Dear readers, the Department of State and the Immigration and Naturalisation Service have both said that the Child Status Protection Act only applies to cases where the petition or visa application was filed on or after August 6, 2002, as well as to previously-filed cases that remained pending on August 6, 2002. However, the Department of State interprets the phrase “only if a final determination has not been made on the beneficiary’s application for a visa or adjustment of status prior to (August 6, 2002)”, which in a way limits the number of persons who will benefit. The Department of State interpretation eliminates eligibility for those applicants who had cases denied due to an age-out clause under the old law or who never applied for the visa because they aged-out under the old law.

Here is some guidance on the CSPA Formula which is used to determine if someone qualifies for the benefit. Please note that V visa applicants are ineligible for CSPA protection.

• The date of visa availability is the date that the priority date becomes current and the I-130 is approved.
• The date that an applicant seeks to acquire status is determined by the date of the visa application. For consular processing cases, it is the completion of DS-230 Part I and II. However, there is some confusion as to whether the triggering event is when just the DS-230 Part 1 is filed. There has been no clear position on this as of yet and consulates are recommended to request an advisory opinion from the Department of Justice. Thus, if a consulate denies a case which falls under this section without first seeking an advisory opinion, an applicant should seek an advisory opinion in order to preserve his/her chances of obtaining a green card.

I am an IT professional working in India. I have been in this field for past two years. I wanted to clear some doubts regarding H1-B visa. If my H1-B application has been filed by a company, and another organisation also wants to file the same visa for me, is it possible? Also, is the INS closed in February? When do they stop accepting applications?

—Suman Shah

Yes, another company can file a different application for you but you need to decide which company you are going to work for and then go for stamping with their approval notice. You cannot get two H1-B visa stamps for two different companies. Also, the INS never closes except for public holidays and they do not stop accepting applications unless the H1-B quota has been used up, which most likely will not happen. If you apply in now, most likely your application will not get approved in three months, unless the company files under the expedite process. Then the INS will process your case in 15 business days for an additional fee.

I am working for a US-based company. My company had filled an H1-B visa for me a few days back, but I haven’t got any receipt number as of yet. They have told me that it will take almost six months to complete the visa processing. Does normal processing take so much time? I happened to be in the US two months back on B1 and also have valid two years work visa to UK. Is this going to help to speed up the process?

—Sri Dutta

The current processing time for an H1-B is taking between three-four months, unless there is a query on the case, which will prolong the processing time. Your B1 and having a UK work permit will not help or hurt your H1-B application nor will it speed up the process.

I have an H1-B approval and went for stamping two days back. The consulate only took two minutes with my case and gave me a letter stating that I needed more documents and am ineligible for the stamping due to Section 221(g). What does this mean? I am very worried.

—Krishna Iyer

When an applicant is refused under Section 221(G), it is because he or she is missing a document or some other piece of information which the consular officer needs in order to make a final decision on your eligibility for the visa. Generally, you will be told what type of documents might satisfy the consular officer. So please get the documents and go to the consulate again. It should be okay.

Can my spouse come and live in the US while the visa petition is pending?

—Som Sengupta

If you are a US citizen, once you file Form I-130, your spouse is eligible to apply for a nonimmigrant K-3 visa. This will entitle her to come to the US to live and work while the visa petition is pending. The form to file for this benefit is Form I-129F. If you are a Legal Permanent Resident (LPR) and have filed for I-130 for your spouse and/or minor children prior to December 22, 2000, your spouse and/or children may be eligible for the V visa classification, if more than three years have passed since the I-130 was filed.