I am a permanent resident who has petitioned for her child. The child is under 21 and unmarried, to get a greencard. The petition (I-130) was approved and the case was classified as 2A (family-based) and priority date was given. However, while waiting for the right priority date to come, my child reached the age of 21. Does this mean the child has LOST the 2A classification or does the case remain as a 2A??

The 2A preference applies to spouses and children of lawful permanent residents. According to INA §101(b)(1), "child" is defined as an unmarried person under twenty-one years of age. The child must be eligible at the time that she acquires lawful permanent residence. Therefore, once your child reaches twenty-one, she "ages out" and is no longer in the 2A preference.

The INS regulations provide for the automatic conversion of family-based petitions, but only in certain cases. According to 8 CFR §204.2(i)(2), a currently valid petition classifying the child of a United States citizen as an immediate relative is regarded as having been approved for the family-based first preference as of the beneficiary's twenty-first birthday and the beneficiary's priority date is preserved. However, no such provision exists for children of lawful permanent residents once they reach their 21st birthday.

You will have to file a new petition for your child in the 2B preference, but his or her priority date will not be preserved. Of course, once you naturalize your child's 2B case will automatically convert to the first family-based preference, as a result of 8 CFR §204.2(i)(3).

I am a natural-born U.S. citizen. I moved from the U.S. to Canada at age 2 and subsequently acquired Canadian citizenship. I currently hold both Canadian and U.S. passports.  I am now a doctor in Canada.  My wife is a Canadian citizen.  My son was born in Canada last year (he is 2 now) but is he an American citizen also?  Some people say that he is because of birth to a U.S. citizen, even though my wife is Canadian.  As a doctor I may want to leave Canada to practice in the U.S. and thus I want my son to acquire a green card or U.S. citizenship so that he can come to the U.S. to work, go to school, etc.  Can I apply for him in Canada or do I have to wait until he is gets to the US?

Since your child is only two, the 1986 law applies here. If you refer to my article on citizenship by birth abroad, you will see that a child born on or after November 14, 1986 to one U.S. citizen parent and one alien parent will acquire U.S. citizenship if the U.S. citizen parent was physically present in the United States or its outlying possessions for at least 5 years, at least 2 of which were after attaining the age of 14 years, before the child's birth. Clearly, you were not physically present for the required period of time. Therefore, your child is not a U.S. citizen by birth.

However, you may file on your child's behalf to have him naturalized under INA §322. The requirements for naturalization under INA §322 appear in my article on citizenship by naturalization. I do not wish to repeat the contents of the article here, but I will mention two important requirements:

1. As stated in that article, the child must have been lawfully admitted into the United States, although not necessarily a lawful permanent resident. This precludes you from applying while your child is in Canada.

2. You must already have been physically present in the U.S. for five years, at least two after the age of 14, before filing the naturalization application on behalf of your child. Clearly you cannot satisfy this requirement, at least not yet. According to INA §322, you may use the physical presence of one of your U.S. citizen parents to satisfy this requirement. However, your parents may not have met the physical presence requirement either, or they may not be U.S. citizens. If this is the case, there is a further exemption from the physical presence requirement if the child is a lawful permanent resident residing in the U.S. with the U.S. citizen parent. Therefore, if you cannot comply with the physical presence requirement either personally or through your U.S. citizen parent, you can still move back to the U.S., petition for your child's permanent residence, and then apply for naturalization under INA §322.

I live in Canada(windsor) and I commute (during the day day) to work in United States. Currently I am on H-1B status. My question is, does the 6 year cap on H-1B status apply in my case? Can I extend my H-1B past the 6 year limit?

This is a very interesting question. According to 8 CFR §214.2(h)(13)(v), the six year limit does not apply to an alien who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitation shall not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.

Although the regulation exempts aliens who reside abroad and regularly commute to the United States, it makes specific reference to "part-time" employment. There is also a requirement that the alien's employment be for an aggregate of six months or less per year. Although it is arguable that the six month limit does not apply to H-1B's who reside abroad, the reference to part-time employment suggests that it does. Therefore, I do not believe that you will be entitled to seek the benefit of this exception.

Once you reach the six-year limit on your H status, you will have to depart from the United States for a period of one year before becoming eligible for H status again.