Child Aging Out? CSPA may help

[JimVaPhuong 4,863]

Thank you for enlightening me. That was really helpful.

Now my problem is that I cant find any pronouncement from NVC that says that if the DS-230 is submitted before retrogression, CSPA should be computed on the date visas first became available.

The only thing I could find was a pronoucement from USCIS that directly addresses my concern although it mentions I-485 and not DS-230. That is found here:

http://www.uscis.gov/files/pressrelease/CSPA2_pub.pdf

We will email NVC ASAP and I would like to include in that email a reference to my concern. Is there any released pronouncement from NVC that says such? If not, does the pronouncement of the USCIS on CSPA automatically apply to the NVC?

I also found this from the US Department of State (where NVC is under, like you said) website but it doesn't explicitly mention that if the DS-230 is submitted prior to retrogression, my CSPA age should be computed the first time visas became available.

http://www.state.gov/documents/organization/87848.pdf

Thank you.

Never look to USCIS for guidance on Department of State policies. The answer is in the Foreign Affairs Manual, section 42.42, Note 12:

http://www.state.gov/documents/organization/87848.pdf

Start on page 10 for the CSPA information. The "sought to acquire" provision is discussed starting on page 15.

In family and employment-based preference, DV, and SIV cases the alien must seek to acquire LPR status within one year of visa availability. The one year requirement does not apply in IR or immediate beneficiary IB cases. The one year requirement generally means that the applicant must have submitted the completed DS-230, Part I within one year of a visa becoming available.

That one year window closes if the cutoff date retrogresses before the beneficiary has satisfied the "sought to acquire" requirement. That's explained in the next section of the FAM:

If a visa availability date retrogresses (e.g., employment-based third preference numbers are unavailable) or the preference category changes (e.g., F1 converts to F3) within one year of visa availability and the visa applicant has not yet sought to acquire LPR status, then once a visa number becomes available again the one year period starts over.

In case you're interested in educating yourself, go to travel.state.gov and click on "Visas" in the menu bar at the top of the page. On the left side menu bar click on "Laws, Regulations, and Policy", and then click on "Foreign Affairs Manual". Click on the link for "9 FAM Visas" - that's the section that applies specifically to visa issuance. Most of the rest of the Foreign Affairs Manual has to do with stuff unrelated to visas.

[anoldjourney 1]

All this reading is leaving me very confused.

My step-dad is a US Citizen and will petition for me for the I-130, hoping to send it off in the next few days.

I'm 20 years old, I turn 21 on the 27th September. We have been told several different things, most have been that my age will "lock" at 20 once my I-130 is received. After reading heaps of stuff in this post, I don't see how that can work now..?

Please tell me if I'm wrong or not, but will CSPA cover me? :|

[JimVaPhuong 4,863]

All this reading is leaving me very confused.

My step-dad is a US Citizen and will petition for me for the I-130, hoping to send it off in the next few days.

I'm 20 years old, I turn 21 on the 27th September. We have been told several different things, most have been that my age will "lock" at 20 once my I-130 is received. After reading heaps of stuff in this post, I don't see how that can work now..?

Please tell me if I'm wrong or not, but will CSPA cover me? :|

First, did your step-dad marry your mother before you were 18? If so then he can submit an I-130 petition for you. If he married your mother after you were 18 then he can't submit a petition for you, but your mother could if she's a permanent resident in the US.

Presuming he married your mother before you were 18, everything will depend on when USCIS accepts the petition, which usually happens within a few weeks of mailing it to them. If they accept it before you're 21 then your visa category will be IR2, and your age will be locked. You should be getting a visa in less than a year. If USCIS accepts the petition after you're 21 then you'll age out for the IR2, and your visa category will be F1. You'll have to wait until a visa number is available before you can apply for a visa. The wait for an F1 is currently about 7 years.

In a nutshell, your age is determined on the date that a visa number becomes available for you. They take your actual calendar age, subtract the amount of time it took for the petition to be approved by USCIS, and that becomes your CSPA effective age. If that effective age is under 21 then you didn't age out. However, all of those mathematical gymnastics don't really apply to immediate relative categories because a visa number becomes available the day that USCIS accepts the petition. For that reason, the beneficiary's age is effectively locked on that day.

It's critical that your step-dad get the petition submitted as soon as possible. The petition must be accepted before you're 21 in order to secure your visa category as IR2. It doesn't matter when it's mailed or postmarked. It must be accepted, which means they've opened it and processed his petition into their system.

[anoldjourney 1]

First, did your step-dad marry your mother before you were 18? If so then he can submit an I-130 petition for you. If he married your mother after you were 18 then he can't submit a petition for you, but your mother could if she's a permanent resident in the US.

Presuming he married your mother before you were 18, everything will depend on when USCIS accepts the petition, which usually happens within a few weeks of mailing it to them. If they accept it before you're 21 then your visa category will be IR2, and your age will be locked. You should be getting a visa in less than a year. If USCIS accepts the petition after you're 21 then you'll age out for the IR2, and your visa category will be F1. You'll have to wait until a visa number is available before you can apply for a visa. The wait for an F1 is currently about 7 years.

In a nutshell, your age is determined on the date that a visa number becomes available for you. They take your actual calendar age, subtract the amount of time it took for the petition to be approved by USCIS, and that becomes your CSPA effective age. If that effective age is under 21 then you didn't age out. However, all of those mathematical gymnastics don't really apply to immediate relative categories because a visa number becomes available the day that USCIS accepts the petition. For that reason, the beneficiary's age is effectively locked on that day.

It's critical that your step-dad get the petition submitted as soon as possible. The petition must be accepted before you're 21 in order to secure your visa category as IR2. It doesn't matter when it's mailed or postmarked. It must be accepted, which means they've opened it and processed his petition into their system.

Great, sounds good. So if we send it in the next few days, that gives them about a month to hopefully have it accepted. Oh, and yes they married when I was 11.

My next issue is, how long do I have before I have to complete the next step of the process? My parents won't be moving for 2 years (they're waiting until my mum completes her PhD here), but we wanted to get my age "locked" rather than the 7 year wait..

Edited August 20, 2012 by JESSJAME5

[anoldjourney 1]

First, did your step-dad marry your mother before you were 18? If so then he can submit an I-130 petition for you. If he married your mother after you were 18 then he can't submit a petition for you, but your mother could if she's a permanent resident in the US.

Presuming he married your mother before you were 18, everything will depend on when USCIS accepts the petition, which usually happens within a few weeks of mailing it to them. If they accept it before you're 21 then your visa category will be IR2, and your age will be locked. You should be getting a visa in less than a year. If USCIS accepts the petition after you're 21 then you'll age out for the IR2, and your visa category will be F1. You'll have to wait until a visa number is available before you can apply for a visa. The wait for an F1 is currently about 7 years.

In a nutshell, your age is determined on the date that a visa number becomes available for you. They take your actual calendar age, subtract the amount of time it took for the petition to be approved by USCIS, and that becomes your CSPA effective age. If that effective age is under 21 then you didn't age out. However, all of those mathematical gymnastics don't really apply to immediate relative categories because a visa number becomes available the day that USCIS accepts the petition. For that reason, the beneficiary's age is effectively locked on that day.

It's critical that your step-dad get the petition submitted as soon as possible. The petition must be accepted before you're 21 in order to secure your visa category as IR2. It doesn't matter when it's mailed or postmarked. It must be accepted, which means they've opened it and processed his petition into their system.

Ah, I have another question quickly...

If my mum has her I-130 applied for her too now, and I go listed as her unmarried child under 21, will my age be locked under CSPA? Or is it better that I'm applied for on my own I-130? Not sure the best way to do this. But Mum has just suggested doing hers at the same time if it will help mine. She was originally going to wait until next year..

[aaron2020 11,651]

Ah, I have another question quickly...

If my mum has her I-130 applied for her too now, and I go listed as her unmarried child under 21, will my age be locked under CSPA? Or is it better that I'm applied for on my own I-130? Not sure the best way to do this. But Mum has just suggested doing hers at the same time if it will help mine. She was originally going to wait until next year..

No. When a US citizen petitions for a spouse, only the spouse gets a visa. Children listed are never included in the petition. Children are listed only for biographical purposes.

A petition by your stepfather for your mother does nothing for you.

As Jim suggested, your best chance is for your stepfather to establish a US domicile by renting an apartment for both of you. After you get your green card, your stepfather can move back to be with your mom.

[anoldjourney 1]

No. When a US citizen petitions for a spouse, only the spouse gets a visa. Children listed are never included in the petition. Children are listed only for biographical purposes.

A petition by your stepfather for your mother does nothing for you.

As Jim suggested, your best chance is for your stepfather to establish a US domicile by renting an apartment for both of you. After you get your green card, your stepfather can move back to be with your mom.

My mum is moving too, just she needs longer here than I do.

So there's no point listing me on her petition, okay. She just wasn't sure if that would be easier or not. But we'll do our own ones.

[aaron2020 11,651]

My mum is moving too, just she needs longer here than I do.

So there's no point listing me on her petition, okay. She just wasn't sure if that would be easier or not. But we'll do our own ones.

Your mother needs to list you as her child on the I-130 for her. This is for biographical purposes, so there is a point for her to list you on her petition.

[anoldjourney 1]

Your mother needs to list you as her child on the I-130 for her. This is for biographical purposes, so there is a point for her to list you on her petition.

Yeah but I mean listing me on her petition doesn't get me a visa, I do my own. My Mum is filing her I-130 now at the same time as mine. I feel like it's too early for hers as she needs to complete her PhD so it's still 2 years off before she can move..

[JimVaPhuong 4,863]

Yeah but I mean listing me on her petition doesn't get me a visa, I do my own. My Mum is filing her I-130 now at the same time as mine. I feel like it's too early for hers as she needs to complete her PhD so it's still 2 years off before she can move..

Family preference visa categories allow for derivatives - spouse and minor unmarried children - to get a visa based on the same petition. Immediate relative categories don't allow for derivatives - a separate petition is required for each relative.

[anoldjourney 1]

Just playing around with dates right now for the CSPA calculator.

We sent off the I-130 on the 23rd, and tracking the post says it's been received there in Chicago today, the 28th.

What date would it be that the application has been filed? Would that be today?

My age should be "locked" under CSPA now, right? It seems that no matter what date I put in I'm under CSPA? Even if we're asked for RFE, would it still be filed as say today/this week, BEFORE the RFE?

Thanks!

[JimVaPhuong 4,863]

Just playing around with dates right now for the CSPA calculator.

We sent off the I-130 on the 23rd, and tracking the post says it's been received there in Chicago today, the 28th.

What date would it be that the application has been filed? Would that be today?

My age should be "locked" under CSPA now, right? It seems that no matter what date I put in I'm under CSPA? Even if we're asked for RFE, would it still be filed as say today/this week, BEFORE the RFE?

Thanks!

Not necessarily. The priority date is assigned when a USCIS examiner has reviewed the petition package, processed it into the system, and electronically submitted the check for payment. That's the day that becomes the priority date. That's the day that your age is locked. It's usually within a couple of days of the day the petition arrived at USCIS. It depends on how far behind they are in processing receipt of new petitions.

If you get an RFE it will come after a USCIS adjudicator starts working on the petition, which will be months from now. That won't change the priority date, nor will it change the date your age was locked.

[boy_f2a 0]

i need some help.

Under F2A

Priority Date - may 7 2010

date of birth - august 12 1990

DS-230 sent on november 2010

I-130 pending for 4 months.

priority date became current at first on December 1, 2010 current age on this date is "20 years and 3 months old"

january 1, 2011 retrogression takes place, in which my Priority date is not current

Priority date became current again 2nd time.September 1, 2012

they gave me an interview date....

Am i still eligible for f2a visa ?

Edited September 2, 2012 by boy_f2a

[JimVaPhuong 4,863]

i need some help.

Under F2A

Priority Date - may 7 2010

date of birth - august 12 1990

DS-230 sent on november 2010

I-130 pending for 4 months.

priority date became current at first on December 1, 2010 current age on this date is "20 years and 3 months old"

january 1, 2011 retrogression takes place, in which my Priority date is not current

Priority date became current again 2nd time.September 1, 2012

they gave me an interview date....

Am i still eligible for f2a visa ?

You should be. You got your DS-230 submitted before the retrogression. Your age should have been locked on the day the priority date first became current.

[vikky 1]

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