Child Aging Out? CSPA may help

[haidernaseeb 0]

hello every one i have a question with you date of birth 26 december 1990 .........case approved 26 september 2010..........pd 5 may 2009 that time my age is 20 year and 8 month.my question is does CSPA cover my age or my category changed f2b from f2a unmrried child?tanksssssssss

[JimVaPhuong 4,863]

hello every one i have a question with you date of birth 26 december 1990 .........case approved 26 september 2010..........pd 5 may 2009 that time my age is 20 year and 8 month.my question is does CSPA cover my age or my category changed f2b from f2a unmrried child?tanksssssssss

CSPA is complicated, and I'm still trying to figure out all of the details...

Your priority date was current the day your petition was approved, but was no longer current in January, 2011, when the cutoff dates retrogressed. My understanding is that you would have needed to have "sought to acquire LPR status" during the time your priority date was current in order to lock in your age for CSPA calculations. If you didn't do that in that window of time then your age will be recalculated when your priority date once again becomes current.

The provision that you must have "sought to acquire LPR status" is described in 9 FAM 42.42 N12.6:

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

.

How this is affected by a retrogression in cutoff dates is described in 9 FAM 42.42 N12.7.

In order to seek to acquire lawful permanent residence an alien beneficiary must actually have one full year of visa availability. 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.

The alien beneficiary‟s age under the CSPA is redetermined using the subsequent visa availability date

.

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

These provisions seem reasonably clear. If you filed a DS-230 during the time your priority date was current then you locked in your age. If you didn't then your age is going to be recalculated when your priority date becomes current again, which means you will have aged out for an F2A.

[haidernaseeb 0]

when i mail NVC about CSPA ..i ask nvc does CSPA cover my age then answer is ..Your inquiry has been received at the National Visa Center (NVC).

In order to better process future inquiries, please be sure to identify yourself in each piece of correspondence sent to the NVC. If you are writing on behalf of a law office please include the law office name as well as the attorney of record's name.

Currently, this case cannot be reviewed for applicability of the Child Status Protection Act (CSPA), as there is no visa number available according to this case's priority date and visa category.

The applicant's name has been placed on the list of documentarily qualified cases awaiting the availability of visa numbers under the numerical limitations prescribed by statute. The designated representative of this case (applicant, petitioner, or attorney) will be notified of an appointment date as soon as the numbers have been received. The applicant should NOT make any travel arrangements, sell property, or give up employment until the US Embassy or Consulate General has issued a visa.

An immigrant visa is usually valid for six months from the date it is issued. It may be used to apply for admission into the United States any time during its validity.WHAT IT MEAN?TANKS

[nsranapk 1]

I am in the same situation

when i mail NVC about CSPA ..i ask nvc does CSPA cover my age then answer is ..Your inquiry has been received at the National Visa Center (NVC).

In order to better process future inquiries, please be sure to identify yourself in each piece of correspondence sent to the NVC. If you are writing on behalf of a law office please include the law office name as well as the attorney of record's name.

Currently, this case cannot be reviewed for applicability of the Child Status Protection Act (CSPA), as there is no visa number available according to this case's priority date and visa category.

The applicant's name has been placed on the list of documentarily qualified cases awaiting the availability of visa numbers under the numerical limitations prescribed by statute. The designated representative of this case (applicant, petitioner, or attorney) will be notified of an appointment date as soon as the numbers have been received. The applicant should NOT make any travel arrangements, sell property, or give up employment until the US Embassy or Consulate General has issued a visa.

An immigrant visa is usually valid for six months from the date it is issued. It may be used to apply for admission into the United States any time during its validity.WHAT IT MEAN?TANKS

[haidernaseeb 0]

WHEN I ASK NVC ABOUT CSPA THE REPLY IS Currently, this case cannot be reviewed for applicability of the Child Status Protection Act (CSPA), as there is no visa number available according to this case's priority date and visa category. WHAT IT MEANS?

[JimVaPhuong 4,863]

WHEN I ASK NVC ABOUT CSPA THE REPLY IS Currently, this case cannot be reviewed for applicability of the Child Status Protection Act (CSPA), as there is no visa number available according to this case's priority date and visa category. WHAT IT MEANS?

It means they won't make a decision about the CSPA eligibility until your priority date is current. At that time they'll figure out if you're still eligible in that visa category.

[Jojo92122 1,924]

CSPA is complicated, and I'm still trying to figure out all of the details...

Your priority date was current the day your petition was approved, but was no longer current in January, 2011, when the cutoff dates retrogressed. My understanding is that you would have needed to have "sought to acquire LPR status" during the time your priority date was current in order to lock in your age for CSPA calculations. If you didn't do that in that window of time then your age will be recalculated when your priority date once again becomes current.

The provision that you must have "sought to acquire LPR status" is described in 9 FAM 42.42 N12.6:

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

.

How this is affected by a retrogression in cutoff dates is described in 9 FAM 42.42 N12.7.

In order to seek to acquire lawful permanent residence an alien beneficiary must actually have one full year of visa availability. 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.

The alien beneficiary‟s age under the CSPA is redetermined using the subsequent visa availability date

.

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

These provisions seem reasonably clear. If you filed a DS-230 during the time your priority date was current then you locked in your age. If you didn't then your age is going to be recalculated when your priority date becomes current again, which means you will have aged out for an F2A.

The government's interpretation of "sought to acquire" has been rejected in at least one BIA case and in an 11 Circuit case. The government interprets "sought to acquire" to mean a filing of the DS-230. The BIA and 11 Circuit rejects this interpretation. A person who "takes substantial steps" meets the "sought to acquire" element. Substantial steps could include hiring a lawyer or obtaining documents to file the DS-230.

http://www.ca11.uscourts.gov/opinions/ops/201011314.pdf

http://shusterman.typepad.com/nation-of-immigrants/2010/10/bia-on-cspas-sought-to-acquire.html

[sp1991 28]

yesterday i got one letter from nvc.like this

""According to our records ,the principal applicant's child is now 21 years of age or older .

consequently the child is no longer eligible tobew a derivative applicant on this petition.upon entering US,the principal applicant may file a separete immigrant visa petition with the department of Homeland security's office of u.s citizenship and immigration services (usics ) on behalf of their son and daughter.

"There is a law, the Child Status Protection Act (CSPA), which applies to a narrow range of cases that may allow the beneficiary's son or daughter to remain eligible under this petition. At the time of the parent's visa interview, the consular officer will determine whether or not CSPA is applicable in this particular situation."

preference category : f4

priority date 04apr2001

u.s consulate general :mumbai

my brother is approx 25 years old.

here is the calculation which we sended to nvc

alien's dob : 8/17/86

date immigrant petition filled :4/9/2001

date immigrant petition approved :6/26/2009

length of time immigrant petition pending :8 years 2 months 17 days

age of alien on date immigrant visa became available : 23 years 11 months 17 days

cspa age: 15 years 9 months 0 days

so my qun is why they send us letter like this ?

and they are talking about me ????

i m 20 years old....my dob is 3d july 1991 ..will turn 21 old in next july

will i and my bro get visa??

ri8 now our file is a part of retrogression

and our case was completed in jan 2011 ..then why they send me letter yesterday ??

plz help me..anybody know abt this..

thnk u in advance

[JimVaPhuong 4,863]

yesterday i got one letter from nvc.like this

""According to our records ,the principal applicant's child is now 21 years of age or older .

consequently the child is no longer eligible tobew a derivative applicant on this petition.upon entering US,the principal applicant may file a separete immigrant visa petition with the department of Homeland security's office of u.s citizenship and immigration services (usics ) on behalf of their son and daughter.

"There is a law, the Child Status Protection Act (CSPA), which applies to a narrow range of cases that may allow the beneficiary's son or daughter to remain eligible under this petition. At the time of the parent's visa interview, the consular officer will determine whether or not CSPA is applicable in this particular situation."

preference category : f4

priority date 04apr2001

u.s consulate general :mumbai

my brother is approx 25 years old.

here is the calculation which we sended to nvc

alien's dob : 8/17/86

date immigrant petition filled :4/9/2001

date immigrant petition approved :6/26/2009

length of time immigrant petition pending :8 years 2 months 17 days

age of alien on date immigrant visa became available : 23 years 11 months 17 days

cspa age: 15 years 9 months 0 days

so my qun is why they send us letter like this ?

and they are talking about me ????

i m 20 years old....my dob is 3d july 1991 ..will turn 21 old in next july

will i and my bro get visa??

ri8 now our file is a part of retrogression

and our case was completed in jan 2011 ..then why they send me letter yesterday ??

plz help me..anybody know abt this..

thnk u in advance

How did you end up with a petition taking more than 8 years for approval? Remember that CSPA is based on the length of time for the petition to be approved, which is less than a year for most people. Time spent waiting for the priority date to become current doesn't count.

[ashpatel1970 1]

That's true.

date of PD becoming current - date of petition approved = time elligible for CSPA age relaxation

[JimVaPhuong 4,863]

That's true.

date of PD becoming current - date of petition approved = time elligible for CSPA age relaxation

No. Date of petition approved - priority date = time eligible for CSPA age deduction. You can deduct only the time spent waiting for the petition to be approved. You cannot deduct time spent waiting for the priority date to become current.

Again, did it actually take 8 years for your petition to be approved?

[vb4260 0]

If the child gets a IV before age 21, does he/she also have to enter U.S. before age 21? Or is the 6 month immigrant visa time allowed even if child enters U.S. after age 21?

[JimVaPhuong 4,863]

If the child gets a IV before age 21, does he/she also have to enter U.S. before age 21? Or is the 6 month immigrant visa time allowed even if child enters U.S. after age 21?

For the purpose of eligibility in an age restricted category, the applicant effectively stops aging when they have taken steps to acquire a visa. An applicant who has already been issued a visa has obviously done this. They only have to enter the US before the visa expires.

For a category that's not covered by the CSPA, such as a K2, they would have to enter the US before they were 21 (based on current USCIS policy).

[Westlink 34]

CSPA is complicated, and I'm still trying to figure out all of the details...

Your priority date was current the day your petition was approved, but was no longer current in January, 2011, when the cutoff dates retrogressed. My understanding is that you would have needed to have "sought to acquire LPR status" during the time your priority date was current in order to lock in your age for CSPA calculations. If you didn't do that in that window of time then your age will be recalculated when your priority date once again becomes current.

The provision that you must have "sought to acquire LPR status" is described in 9 FAM 42.42 N12.6:

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

.

How this is affected by a retrogression in cutoff dates is described in 9 FAM 42.42 N12.7.

In order to seek to acquire lawful permanent residence an alien beneficiary must actually have one full year of visa availability. 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.

The alien beneficiary‟s age under the CSPA is redetermined using the subsequent visa availability date

.

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

These provisions seem reasonably clear. If you filed a DS-230 during the time your priority date was current then you locked in your age. If you didn't then your age is going to be recalculated when your priority date becomes current again, which means you will have aged out for an F2A.

Hi, my daughter is a derivative of my petition. Her D.O.B is 01/25/1987, petition approved, 05/14/2010, PD 05/05/2006. Our case is completed and we are now documentarily qualified for visas. We were a few months from been current when we were contact by NVC but then the big RETRO. Q. Is my daughter age locked in due to the fact that my case is comeplete before an year period even though we were not current?

Edited December 7, 2011 by Westlink

[JimVaPhuong 4,863]

Hi, my daughter is a derivative of my petition. Her D.O.B is 01/25/1987, petition approved, 05/14/2010, PD 05/05/2006. Our case is completed and we are now documentarily qualified for visas. We were a few months from been current when we were contact by NVC but then the big RETRO. Q. Is my daughter age locked in due to the fact that my case is comeplete before an year period even though we were not current?

No. The age is locked once the priority date actually becomes current, and the alien has "sought to acquire" a visa. As Jojo pointed out, there is a difference of opinion between the BIA and current Department of State policy as to what constitutes "sought to acquire", but there's no difference of opinion that an alien can't seek to acquire a visa until their priority date is current. Your priority date never became current, so her age could not have been locked yet. She's going to age out in a couple of months unless there's a rapid acceleration of F1 cutoff dates.