Q: Does CSPA apply to derivation of citizenship through naturalized father, 10 years after permanent bar?
The petitioned child was 14 at the time of the consular appointment (05/03/2012), in which the 212(a)(9)(c)(i)(i) was applied.
A:
If the child was the principal beneficiary of a family petition when he was 14 in 2012, he should not have been bar from applying for a visa at that time. A child under 18 does not accrue unlawful presence. If the child was a derivative beneficiary as the son or daughter of a principal beneficiary and the principal beneficiary was bar because of his or her unlawful presence in the US, the child cannot immigrate unless the principal beneficiary gets an immigrant visa as well. If the principal beneficiary could have applied for an unlawful presence waiver if he had a spouse or parent that is a lawful permanent resident or a US citizen. At this point, I will assume the principal beneficiary did not have the qualifying relatives to happy for the unlawful presence waiver, and now he could get the visa because of the passage of time. Now the child is 24 years of age. If the father never filed a separate petition for the child will not derive citizenship unless she meets the stringent regulatory requirements. A naturalized father can petition for the adult child now and the adult child will need to wait for the visa to become available for that category.
But if the principal beneficiary is now eligible to receive his/her immigrant visa now because of the passage of time, the adult child will be protected under CSPA because the principal beneficiary, as well as the derivative, SOUGHT to acquire the immigrant visa within a year of the visa availability. You can show that you sought to acquire by submitting proof of the principal and derivative beneficiary completed Immigrant Visa Electronic Application (Form DS-260), Part I to the Department of State (DOS); proof of payment of the immigrant visa fee to DOS; proof of payment of the Affidavit of Support (Form I-864)(provided the applicant is listed on the Affidavit of Support); or having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.
I strongly advise that you consult with an experienced immigration attorney to address this matter as soon as practicable.
All the best!
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