Applying I-485 for son > 21 yrs age

[sendmailtojk]

I was recently approved for an employment based GC. Along with me, my wife and < 21 daughter got too. My EB2 labor was applied in Apr 2003 when my son had just crossed 21 years of age (March 1).

When it was time to apply for our I-485s in Aug 2007, the attorney opined that because he had crossed 21 years of age at the time labor was applied, they could not file an I-1485 for him. Not knowing any better, we complied.

Talking to friends I discovered that my attorney was possibly wrong. And that I could have.....

Is my attorney's opinion correct? If not, what can I do now?

Cheers

[eaglesvr]

Child Protection Act is based on I-140 timing. If by the time of applying for I-140 your son got 21 then no-chance, it's not applicable. If not then some calculation is needed.
When did they apply for I-140. How old was your son at that time? When was it approved?

[akgind]

I can feel your concern, jk. Am in the same situation. We just got our GC along with our daughter, EB2, PD of Aug02. Our son, however, turned 21 in 2004 and missed the boat because labor was stuck in BEC till 2007.

The rule is that the child should be less than 21 at the time 485 is applied. The CSPA of 2001 gives credit for the time 140 was pending. In most cases this effectively means that the age is locked on the date of 140 application.

The CSPA does not give credit for the time labor is pending. Labor pending was not backlogged when CSPA was enacted, 140 was. Hence the law.

I do not know if there is any way out. I have heard that the aged-out child might be able to claim the PD of the parents if and when s/he applies for GC based on own employment. Nothing authentic, though.

[sendmailtojk]

My son was > 21 years of age when my I-140 was applied (Aug 07). So I guess I can forget it.