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illegitmate child of a USC & H1B

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  • illegitmate child of a USC & H1B

    Hello! I hope u guys don't mind if i am posting the whole scenario of my case and hoping against hope i will be finally informed here with precision so i can decide on my other options.

    The scenario: I am an illegitimate daughter of a USC (ex-filipino). Nevertheless, he
    acknowledged me on my birth cert and left for USA sometime in the 80s leaving my mother and
    me behind with all his sincere promises of going back to Manila to marry her. Apparently, he married another woman. Probably, to make up for his past inaction, he filed a petition for
    me sometime in the last quarter of 1996 when I was still 20 years old and fortunately, was
    approved about 9 months before I turned 21. To my surprise, the approved petition falls
    under F1(unmarried adult child of a USC), in which I thought all along the petition would
    fall under the minor child. Here are some questions but 1st forgive my ignorance of the immig laws:

    1. When a petitioner files for a petition, is it the US immig agency that decides what
    category the beneficiary would fall? In my case, or instead, should it be the petitioner, in this case, my father? i was just wondering why the petition fell under F1 when in fact it
    was approved 9 months earlier before i turned 21.

    2. We are aware of the CSPA. Instead, my father asked me to just wait for the priority date of the petition bec acc to him something might get wrong with the process if he opts to file for an adjustment. But still, just for curiosity sake, given that I am under F1, can my father file for an adjustment to avail of the Child Status Protection Act even it was a decade ago the F1 petition was approved?

    3. Incidentally, my father was born in Seoul. I read somewhere that a beneficiary may use the priority date of the country of either parent's birthplace. I was born in Manila but since my father was born in South Korea, may I use the prority dates for South Korea?

    4. I am presently employed in an IT company in Manila. I am often assigned to do overseas assignments. My father advised me not to go overseas bec it might jeopardize the process of
    the petition. But I've been doing this for 2 years now. Is there any truth on his advise?

    5. Finally and the most important, I am doing seemingly alright with my IT career. Incidentally, a US employer negotiated with me a promising IT career in the US but I am still in the process of "professionalizing" myself. Probably, after a year or two i might consider it, besides, I still have other options in mind. Nevertheless, since I am still under petition, can a US employer file an H1B visa for me? What about a US tourist visa? Would there be a conflict or impediments?

    So there...I fervently pray that some expert consultants here would give me a very sound advise and information for me to choose other options in the very near future.

    Thank you very much. More Power.

  • #2
    Hello! I hope u guys don't mind if i am posting the whole scenario of my case and hoping against hope i will be finally informed here with precision so i can decide on my other options.

    The scenario: I am an illegitimate daughter of a USC (ex-filipino). Nevertheless, he
    acknowledged me on my birth cert and left for USA sometime in the 80s leaving my mother and
    me behind with all his sincere promises of going back to Manila to marry her. Apparently, he married another woman. Probably, to make up for his past inaction, he filed a petition for
    me sometime in the last quarter of 1996 when I was still 20 years old and fortunately, was
    approved about 9 months before I turned 21. To my surprise, the approved petition falls
    under F1(unmarried adult child of a USC), in which I thought all along the petition would
    fall under the minor child. Here are some questions but 1st forgive my ignorance of the immig laws:

    1. When a petitioner files for a petition, is it the US immig agency that decides what
    category the beneficiary would fall? In my case, or instead, should it be the petitioner, in this case, my father? i was just wondering why the petition fell under F1 when in fact it
    was approved 9 months earlier before i turned 21.

    2. We are aware of the CSPA. Instead, my father asked me to just wait for the priority date of the petition bec acc to him something might get wrong with the process if he opts to file for an adjustment. But still, just for curiosity sake, given that I am under F1, can my father file for an adjustment to avail of the Child Status Protection Act even it was a decade ago the F1 petition was approved?

    3. Incidentally, my father was born in Seoul. I read somewhere that a beneficiary may use the priority date of the country of either parent's birthplace. I was born in Manila but since my father was born in South Korea, may I use the prority dates for South Korea?

    4. I am presently employed in an IT company in Manila. I am often assigned to do overseas assignments. My father advised me not to go overseas bec it might jeopardize the process of
    the petition. But I've been doing this for 2 years now. Is there any truth on his advise?

    5. Finally and the most important, I am doing seemingly alright with my IT career. Incidentally, a US employer negotiated with me a promising IT career in the US but I am still in the process of "professionalizing" myself. Probably, after a year or two i might consider it, besides, I still have other options in mind. Nevertheless, since I am still under petition, can a US employer file an H1B visa for me? What about a US tourist visa? Would there be a conflict or impediments?

    So there...I fervently pray that some expert consultants here would give me a very sound advise and information for me to choose other options in the very near future.

    Thank you very much. More Power.

    Comment


    • #3
      1. how old were you when your father became USC? How come the question of visa classification wasn't brought up earlier?

      2. you are the one that would be filing for adjustment of status (if you were in the US).

      4. traveling to the USA or other places? I don't see why would that jeopardize the process (which is now just waiting..)

      Comment


      • #4
        Eventhough your I-130 was approved before you turned 21, your I-485 had to also be approved before you turned 21 in order for you to qualify for the immediate relative(minor/child under 21). If you are now over 21, you are in the first preference category and has to wait for your priority date to become current. This will be the date for the country of your citizenship, not your father's.

        Comment


        • #5
          pakka - you are incorrect. The CSPA was amended to specifically to cover approved I-130s where the immediate relative was under 21 and the I-485 was not going to be adjudicated until later.
          Note: This is not legal advice. For legal advice contact a competent immigration attorney. http://asylumlaw.blogspot.com

          Comment


          • #6
            senowen, you are right. I have never heard of the cspa until today. I was speaking from experience with my sister. She was turning 21 on the day of her interview for her I-485, and CIS called us and told us that they would skip the interview and approve the 485 prior to her 21st birthday. They told us that this was in order to not slow down her adjudication. 2 weeks later, we got the green card in the mail.

            Comment


            • #7
              Because the INS, now DHS, has always been notoriously slow about adjudicating anything and because many suspect that they used to purposely fail to adjudicate petitions for persons under 21 until too late, Congress was forced to pass the Child Status Protection Act and then amend the act so that people in your sister's situation would not be punished by agency intransigence. However, it sounds like your sister was one of the lucky ones to get a good DHS officer (yes they do exist, but mostly in New York).
              Note: This is not legal advice. For legal advice contact a competent immigration attorney. http://asylumlaw.blogspot.com

              Comment


              • #8
                First of all You should Be coveredx under CSPA.. you can contend that.. Next Your priority date will not changed and you cannot use Parents Country of birth.
                If you move to another country will not c hange anything in case of priority date ..if you still want ot come back to the country where you have initially filed Petition.. other wise you have to where you are do NOA( 824) to change to new country where you will be working.. in that case priority date can move forward or reverse too.. you have to check that country's Date first..

                YOu should try to contest that you are still covered under CSPA and aged out.. as you have Approved petition. thats the good approach for a start.
                Its a discussion, not a legal advise..

                Comment


                • #9
                  My great thanks for all who took the effort of replying.

                  I was only 11 years old when my father became a USC. Initially, relatives in the US were thinking that illegitimate children cannot be petitioned at all. We all thought of asking around and incidentally, I was already 20 years old when my father filed the petition. It was approved 9 months earlier before I turned 21. Yes, my father might have overlooked the classification, me as well. Now I am having doubts on the kind of process my father has undergone.

                  1. But still, does my father have the right to impose on the DHS officer on what classification should I fall?

                  2. Let's just say, there was an overlook. Can my father still contend with the DHS officer re the classification? How does he go about it? Does he really need a lawyer to be able to appeal or probably, he can do this all by himself?

                  3. I do job assignments in Japan once in awhile, however, I am basically based in Manila. So if I decide to apply for a US tour visa, what are the chances of approval considering I am still under petition? What about an H1B? Should I honestly tell the consul that I am waiting for my priority date to become current?

                  4. And if in any case I decide to accept a job contract overseas, say, Japan, can I make use of the priority date of Japan?

                  I read in one column of Atty. Michael J. Gurfinkel about using the priority date of the petitioner's birthplace, in my case, my father's. I will have to look for that article and try to post it here.

                  Pardon me for these many questions. I just want to look ahead and make a solid plan for my future. I look forward to more replies from great people in this forum. Thank you very much for all your help.

                  Comment


                  • #10
                    yes your father can ask DHS for re-classification. if its true new letter will be issued.
                    in other country, you have to look for impact of time. if the priority date of that country (japan) is early or current.. you may transfer petition there but keep in mind that 824 will take time to transfer.. also you should be in japan at the time of interview.

                    You might seen the country of birth of parents or one parent used in case of apply Visa lottory.. not adjustment of status...
                    Its a discussion, not a legal advise..

                    Comment


                    • #11
                      forget to write... chances of getting visit visa is very slim because you are intended immigrant.
                      Its a discussion, not a legal advise..

                      Comment


                      • #12
                        <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content"> Part of honeby's post: I am an illegitimate daughter of a USC (ex-filipino). Nevertheless, he
                        acknowledged me on my birth cert and left for USA sometime in the 80s leaving my mother and
                        me behind with all his sincere promises of going back to Manila to marry her. Apparently, he married another woman. Probably, to make up for his past inaction, he filed a petition for
                        me sometime in the last quarter of 1996 when I was still 20 years old and fortunately, was
                        approved about 9 months before I turned 21. To my surprise, the approved petition falls
                        under F1(unmarried adult child of a USC), in which I thought all along the petition would
                        fall under the minor child. </div></BLOCKQUOTE>

                        Kabayan, you and your father may try contacting or appearing before the US Embassy in Manila through this route.

                        Birth Abroad Out-of-Wedlock to a U.S. Citizen Father:

                        A child born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(a) INA provided:

                        1) a blood relationship between the applicant and the father is established by clear and convincing evidence;

                        2) the father had the nationality of the United States at the time of the applicant's birth;

                        3) the father (unless deceased) had agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years, and

                        4) while the person is under the age of 18 years --

                        A) applicant is legitimated under the law of their residence or domicile,

                        B) father acknowledges paternity of the person in writing under oath, or

                        C) the paternity of the applicant is established by adjudication court.

                        Comment


                        • #13
                          Thank u to kabayan and mohan. Sec 301(g) INA is definitely not applicable in my case. My father left for the US when I was abt 2 years old. He left as an immigrant and approved of naturalization when I was 11. There will be no problem abt a convincing evidence of our relationship. I am even willing to go for a DNA test. But the rest of the items seem not applicable.

                          I've found the article of Atty. Gurfinkel and based from that I cannot make use of the priority date of the country where I will decide to stay for a job contract. I will be obliged to go back to Manila. Incidentally, it takes only about 15-18 months process before Japanese beneficiaries can be approved of immigrant visas as per priority dates of Japan. How lucky they can get whereas, for the Filipinos, you have to wait for toooo long.

                          Anyway, the article I have seems interesting for other beneficiaries who can have other options. Nowhere in the website of Atty. Gurfinkel can I find a post even related to this article w/c was published sometime in 1999 in Philippine's national daily. Unfortunately, this will take me time, maybe until tomorrow, to finish the typing, (ulk! ) bec I have other things to attend to today.

                          However, if a US employer applies an H1B for me, will there be a problem bec I am still under petition? thanks, thanks.

                          Comment


                          • #14
                            Kabayan, medyo mabigat ang tsansa mo sa H-1B because in the Form I-129 (Part 4 Item 7) there's a question if there's an immigrant petition filed on your behalf where you should answer yes and you have to give the specifics. While answering no would mean withholding a key info that can be construed as misrepresentation.
                            There, kaibigan, is the problem, where your nonimmigrant H-1B petition becomes highly discretionary. You can try it though because petitions/applications are adjudicated on a case-to-case basis. Form I-360, as a self petitioning Amerasian, is another option that is also worth trying. Atty. Gurfinkel's article that you referred to has something to do with "cross-chargeability" of priority dates which is also very highly discretionary, he said the same thing in that article.

                            Comment


                            • #15
                              Hello again. In all honesty, I've been to several countries but never did I try to conceal impt info abt me to jeopardize the approval of the visas I've applied. Much more, I would never want to conceal anything to the US consul once I apply for an H1B or a visit visa. The reason I was asking was bec I just wanted to find out abt the demeanor of the visa applicants w/ regards to concealment. I am into IT and I firmly believe the 101% accuracy of the US immigration database. Besides even though, database is not readily available, I still wouldn't do that. Modesty aside, if I am denied, I still have other good chances within reach. Yes, you are right. Chances are, if you try to withhold a key info, you'll end up dead of a good chance. Why take a risk, so to speak? Anyway, thank u kabayan.

                              I am posting just a part of Atty. Gurfinkel's column w/c was published on the Philippine Star's Immigration Corner in January 30, 1999. This is what I was trying to raise on my inquiries in my 1st post on this thread.
                              ...............
                              3. In certain cases, a person may use or borrow the priority dates of a different country other than their country of birth. This is especially advantageous for people from the Philippines, where the waiting times for visas is typically the longest in the world. For example, a child may use the priority dates of the country of either parent's birth (if the child is accompanying and/or following to join the parents). So if a child is born in the Philippines, but one of the parents was born in a different country (such as China), the child may be able to use the priority dates for China. Similarly, a spouse may use the priority dates of their accompanying spouse. So, if a Filipino child is under petition by his or her citizen parent (as the married child of a US citizen), and the Filipino's derivative spouse was born in another country (i.e. India or China), the Filipino child under petition may use the priority dates for their spouse's country, which would be faster than priority dates for Filipinos.

                              It came into my mind since the article was published in 1999, probably, a new law has taken place. Any idea on this? May I know what article you were referring to abt Atty. Gurfinkel cross-chargeability? I hope you don't mind educating me about the "cross-chargeability" of priority dates and the Form I-360, as a self petitioning Amerasian.

                              Thank you.

                              Comment

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