Entry Law, an Oregon based immigration firm, has filed a lawsuit in federal court to save H4 kid’s rights and save them from ageing out due to extremely long green card waiting times for Indians.
The child status protection Act (CSPA) does not help H4 kids as it only has provision to lock their age if H1B’s Green card priority date is current before the child turns 21.
The H4 ageing problem can be resolved automatically if the new S386 law can be passed quickly to remove country of birth based GC limits.
A very well known immigration attorney, Cyrus Mehta has critically commented on the USCIS rule that only counts ‘final action’ chart to protect the child’s green card rights under CSPA law.
The lawsuit has been filed in U.S. District Court (federal court) in Oregon.
The chances of winning the H4 Kid ageing out law are low at this time. In a previous ruling in 2014, supreme court had ruled against it.
The H4 kids will be protected from losing their chance to get green card even if turn 21 while H1B priority date is not current.
The H4 kid would be counted in ROW country quota for the purpose of maintaining their spot in the queue irrespective of their country of birth including India.
The court case decision will be applicable for all H4 kids. There is no need for all foreign born H4 kids to join this lawsuit.
Entry law has requested some H4 kids to join the lawsuit to present their individual stories. You can join the lawsuit if you are affected by the ageing out law by filling the form on entry law’s website.
Entry law is not charging anything for joining the H4 Ageing out lawsuit. This is completely free for you.
Entry law claims that you will not be required to appear in court. In the worst case, if you do require, they will try to raise funds for travel using online communities.
Brent Renison, the lawyer handling this class action lawsuit on behalf of H4 Kids, says that it can take up to 1 to 2 years to reach a decision.
If there are appeals filed against the court decision, then it can take up to 6 years.
Lawyers believe that court decision should allow aged out kids to be benefited if the case is won. But, it is not guaranteed.
Parties to H4 Kid Age Out Lawsuit
Several H1B families from India have already joined the lawsuit as affected parties called plaintiffs.
Many of them have already aged out and are on the verge of getting separated from their parents just because they have not been able to find any H1B sponsor for themselves after completing studies on F1 visa.
Others are on the verge of reaching age 21. The problem is widespread and is imminent for H1B workers who’s priority date is around 2010 and later.
Most of these H4 kids came to US in their adolescence ranging from 2-6 years and have studied here all their life. They do not know any other country and its culture.
Will Joining H4 Kid Lawsuit Affect My Green Card?
There is absolutely no harm in joining the lawsuit and it will NOT affect your chances of green card in future. It is your legal right to challenge US government if you think you are being denied your rights based on equal treatment.
It does not matter if you lose or win this case, your regular H1B extension, transfers or i485 green card applications won’t be treated adversely.
An H4 kid cannot apply for internships, research programs and scholarships due to their visa status.
Other Options for H4 Ageing Out Kids?
There is no guarantee that this case will be decided in favor of H4 kids. Even if it does, the final decision may take up to 6 years to reach.
In the absence of any such current law which can save H4 kid from ageing out, other H1B families are taking these steps as per our analysis:
#1 Send H4 Kid to Canada for Higher Studies
This will help your child to get extra Canada PR points. Canada prefers graduates from their own country for giving out permanent residency.
This is definitely better than studying in US where your kid won’t get any preference unless Trump brings the merit based immigration law to reality.
#2 Apply Canada or Australia PR for whole family
You have good chance of getting Australia skilled 189 or 190 PR if primary H1B parent’s age is less than 40.
Canada also prefers skilled PR based on the points you can get but is more inclined towards younger people. You can certainly get extra points if you have any blood relative who is Canadian citizen.
#3 Apply USA F1 Visa for H4 Kid
Apply F1 Change of status for H4 kid around 2 years before the kid turns 21.
24 months lead time is suggested by attorneys due to the long USCIS processing time for H4 to F1 change of status applications.
This will help your child stay and study in US but will have to file his own H1B and go through the same green card process as you did.
Letting your child take his own spot in same Indian queue will be useless unless the country of birth based limits are removed.
H4 Age Out Lawsuit Full Text
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Source: Entry Law