If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.  

Q - I am Indian citizen currently in US on H1-B. My mother is Nepali citizen. We never cared about Nepali citizenship, as we didn't realize the benefits. Now, i realize, being a Nepali citizen will help me in getting quick green card and also in applying to business school here in future. 

 Can I apply for my GC as Nepali citizen, after getting the Nepali citizenship and passport?  I am here on Indian passport now. My H1-B is on Indian passport  

Am I complicating my situation here? Or is it a good idea to get Nepal citizenship and then apply for GC.  

A - The rules on claiming chargeability to another country are fairly complicated. Generally speaking, chargeability is tied to the country of birth. If both of your parents were born in another country and neither was residing in India at the time you were born, you might have a chance at claiming another country other than India . I suspect your mother’s Nepalese status won’t help you, but, as I always say, talk to your immigration lawyer.  

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Q - I am married to an American citizen and have a conditional green card. Can I sponsor my mother?  

A - You need to be a citizen to sponsor a parent for a green card. Note, however, that spouses of US citizens are normally allowed to apply for citizenship after three years of permanent residency as opposed to the normal five years for other green card holders so you if you’re eligible to apply, you might go that route.  

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Q - I am currently an H-1B visa holder until 2009.  My nephew, who is a 16-year-old, would like to attend high school in the States and will live with me.  I am wondering if I can claim him as my dependent if I become his legal guardian and apply a H-4 visa for him so he can attend school here.  How to apply for being a legal guardian of a minor? Thanks in advance for your reply.  

Only children and spouses can get H-4 relative visas. You would need to likely get a student visa.  

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Q - I have question concerning family based I-130 petition?  

California Service Center processing time:-

U.S Citizen filing for unmarried son/ daughter over 21---- --------Jan 2003

Permanent rident filing for unmarried son/ daughter over 21 -------Feb 2005

U.S Citizen filing for a brother-------------------------------------Apr 2001

The Department of State priority date:-

Unmarried son of U.S Citizen --------------------- Mar 2002

Unmarried son / daughter of permanent resident ----Sep 1999

Brother of U.C Citizen------------------------------Sep 1997  

Can you please tell me what is the difference between California center processing time and the Department of State processing time? Its look like to me it is faster for Permanent resident parent filing for unmarried son/ daughter over 21 than U.S citizen filing for unmarried son/ daughter over 21 at California Service but it's the other way around at Department of State.  

A - People often confuse processing times (which the USCIS service centers publish) and cutoff dates (which the State Department publishes. Most green card categories have strict quotas and the State Department publishes a bulletin every month stating what date an applicant must have filed a petition a petition in order to be considered "current" in a particular category. So a cut off date of January 1, 2008 in a particular category would mean that only applicants who filed a petition before January 1, 2008 would be considered current and eligible for the completion of processing and issuance of a permanent residency visa. The date the applicant filed their petition is their priority date so the State Department Visa Bulletin basically lists how early one’s priority date must be in order to be considered current for completing green card processing.  

The application one files to with USCIS or the Labor Department to establish a priority date – an I-130 or I-140 or a labor certification petition for example – can take a while to approve as well and that’s what the California Service Center processing time chart excerpt you included shows. A priority date is locked in when an application is filed and the application needs to be approved before the case will ultimately be approved. However, even if the I-130 or I-140 application is approved, if a visa number is not available per the monthly State Department Visa Bulletin, a case cannot be completed. If an applicant is in the US , the final stage of processing – the adjustment of status application – can only begin when the State Department Visa Bulletin shows a priority date is current.  

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Q - I am a permanent resident. I petitioned for my daughter who was born on  08/10/1986. The petition was received on 01/28/2004. It was approved 04/22/2005. The F-2A category is now at  07/15/2003. 

I will be citizen on 06/20/2008 in 3 weeks (My daughter will be 22 years and 165 days).  She will be moved automatically to 1st Family category. The category is at 03/15/2002. 

I learned that I can request that she stays in F-2A where her priority date will be current sooner, in about 5-7 month than waiting about 2 years in 1st Category. 

Is it possible for her to stay in the F-2A Category? And would they still apply on her the "age out" problem even if she became a daughter of US Citizen? Because when you subtract the pending time 1 year and 84 days from either her age when I will be citizen or when her priority will be current, she is still going to be over 21 years old.  

A -When you become a US citizen, your daughter’s petition will move to the F-1 preference. Her CSPA age will be her age on the day that you become a citizen, which will be over 21. She cannot stay in the F-2A category once you become a citizen. She can opt to go to the F-2B preference, instead of the F1 preference, but that will only help if she is from the Philippines .  

I have run your numbers quickly, and it looks as though your daughter will be covered by the CSPA if the F2A preference category is reached for your priority date by November of 2008, as long as you are still a permanent resident by that date. This is my rough calculation, and I do not guarantee its accuracy, so you should not rely on this calculation.  

The rules here are quite complicated so you need to sit down with your immigration lawyer and discuss.