Child Status Protection Act requisites...

[sin_jaz 0]

The situation: I am a dependent of my father who has a U.S immigrant visa application pending for administrative processing after the final visa interview at the U.S embassy in Abu Dhabi. During the interview the officer smiled at me and told me that I made this by three months!

My question: If I haven't been eliminated from my parents case by the time of the interview and I submit the form DS-230 (Part 1 and 2) within one year of the date when the Visa Number became available, is there anything else I need to look out for to be given child status protection act? Or am I already given the benefit of the age lock-in? Since the case has been pending for almost 3 months now for the administrative processing is this time going to be counted as anything important or am I already passed the age problem requisites?

P.S Please reply only if you have enough information about Child Status Protection Act...Thank you very much

[Sanjiv Patel 13]

Sin-jaz,

You are correct that you have one year from date immigrant visa became available for your parents to file for CSPA benefit. You need to file DS-230 Part I and Part II within this 12 month time frame. Your age does not matter once DS-230 has been filed.

As an example, today if you were 1 month away from turning 21 as per CSPA formula and your father got visa today, but were 3 months away from turning 21 when the visa became first available, you have 12 months from visa priority date becoming current. That means even by CSPA calculation your age may be over 21, but since you complied under CSPA by taking action and filed DS-230 Part I and Part II within the 12 month time, and have remained unmarried, you are eligible to get visa.

Having said that, I would not delay the process on my end to immigrate just because CSPA act allows me to. If possible, immigrate before you turn 21. In traditional (non-CSPA) cases a few years back, I know two separate cases where children who left on the brink of 21st birthday have been sent back from US airports, if they turned 21 during transit or before entering port of entry.

For anyone else reading this post, if you are over 21, CSPA does protect age out by reducing your age by the period of time the application was pending approval. In some cases, this period can be up to 5 years, thus allowing a 24-25 yr old unmarried child to immigrate with their parents under dependent derivative benefit. For immigration purpose, under CSPA act, the child is still 20-21 yr old only.

[NArocks 13]

Hi I sent you a PM however I will post my question here. This act is very confusing and not many people ( even the government can answer )

I have read some on this, my Husband a current LPR applied for his 18yr Son Receipe date is 12/15/07 at USCIS. The father will not Naturlize until the child is over 21. Does his age freeze now or when he gets the DS-230 from the NVC.

Thanks

Sin-jaz,

You are correct that you have one year from date immigrant visa became available for your parents to file for CSPA benefit. You need to file DS-230 Part I and Part II within this 12 month time frame. Your age does not matter once DS-230 has been filed.

As an example, today if you were 1 month away from turning 21 as per CSPA formula and your father got visa today, but were 3 months away from turning 21 when the visa became first available, you have 12 months from visa priority date becoming current. That means even by CSPA calculation your age may be over 21, but since you complied under CSPA by taking action and filed DS-230 Part I and Part II within the 12 month time, and have remained unmarried, you are eligible to get visa.

Having said that, I would not delay the process on my end to immigrate just because CSPA act allows me to. If possible, immigrate before you turn 21. In traditional (non-CSPA) cases a few years back, I know two separate cases where children who left on the brink of 21st birthday have been sent back from US airports, if they turned 21 during transit or before entering port of entry.

For anyone else reading this post, if you are over 21, CSPA does protect age out by reducing your age by the period of time the application was pending approval. In some cases, this period can be up to 5 years, thus allowing a 24-25 yr old unmarried child to immigrate with their parents under dependent derivative benefit. For immigration purpose, under CSPA act, the child is still 20-21 yr old only.

[NArocks 13]

I was incorrect My step Son receipt date for I -130 is 12/5/07. He was 18 at the time of this receipt. Priority date in F2A is April 03 so he will be frozen at this age and we can opt not to transfer when his dad naturlizes correct? I have contacted a few attorney's and none seem to know too much about this law. You are a wealth of information.

Hi I sent you a PM however I will post my question here. This act is very confusing and not many people ( even the government can answer )

I have read some on this, my Husband a current LPR applied for his 18yr Son Receipe date is 12/15/07 at USCIS. The father will not Naturlize until the child is over 21. Does his age freeze now or when he gets the DS-230 from the NVC.

Thanks

Sin-jaz,

You are correct that you have one year from date immigrant visa became available for your parents to file for CSPA benefit. You need to file DS-230 Part I and Part II within this 12 month time frame. Your age does not matter once DS-230 has been filed.

As an example, today if you were 1 month away from turning 21 as per CSPA formula and your father got visa today, but were 3 months away from turning 21 when the visa became first available, you have 12 months from visa priority date becoming current. That means even by CSPA calculation your age may be over 21, but since you complied under CSPA by taking action and filed DS-230 Part I and Part II within the 12 month time, and have remained unmarried, you are eligible to get visa.

Having said that, I would not delay the process on my end to immigrate just because CSPA act allows me to. If possible, immigrate before you turn 21. In traditional (non-CSPA) cases a few years back, I know two separate cases where children who left on the brink of 21st birthday have been sent back from US airports, if they turned 21 during transit or before entering port of entry.

For anyone else reading this post, if you are over 21, CSPA does protect age out by reducing your age by the period of time the application was pending approval. In some cases, this period can be up to 5 years, thus allowing a 24-25 yr old unmarried child to immigrate with their parents under dependent derivative benefit. For immigration purpose, under CSPA act, the child is still 20-21 yr old only.

[jennybirgitta 0]

I can't really answer the question, but I am in the same situation. My son was 20 when I filed in April 2005, and will be at least 25 before a visa becomes available. Hopefully the petition will still be pending then so his age can be calculated using CSPA. I have applied for citizenship and will naturalize. The best thing might be for me not to naturalize and he will stay in F2A. However, if they process and approve the I-130, using CSPA won't help. He was only 3 months from turning 21 when I filed and F2B is a three years longer wait then F1.

I will also opt out from the transfer to F1, but only if he can stay in F2A, not in F2B. I have read all I can find about this, and I can't find an answer. A real case where this has been tried would be really helpful. One would think there must have been cases like this before.

So, does anyone know if an originally filed F2A beneficiary can stay in F2A after opting out of F1 conversion when parent naturalizes, or will he be in F2B after the opt-out?

I was incorrect My step Son receipt date for I -130 is 12/5/07. He was 18 at the time of this receipt. Priority date in F2A is April 03 so he will be frozen at this age and we can opt not to transfer when his dad naturlizes correct? I have contacted a few attorney's and none seem to know too much about this law. You are a wealth of information.

Hi I sent you a PM however I will post my question here. This act is very confusing and not many people ( even the government can answer )

I have read some on this, my Husband a current LPR applied for his 18yr Son Receipe date is 12/15/07 at USCIS. The father will not Naturlize until the child is over 21. Does his age freeze now or when he gets the DS-230 from the NVC.

Thanks

Sin-jaz,

You are correct that you have one year from date immigrant visa became available for your parents to file for CSPA benefit. You need to file DS-230 Part I and Part II within this 12 month time frame. Your age does not matter once DS-230 has been filed.

As an example, today if you were 1 month away from turning 21 as per CSPA formula and your father got visa today, but were 3 months away from turning 21 when the visa became first available, you have 12 months from visa priority date becoming current. That means even by CSPA calculation your age may be over 21, but since you complied under CSPA by taking action and filed DS-230 Part I and Part II within the 12 month time, and have remained unmarried, you are eligible to get visa.

Having said that, I would not delay the process on my end to immigrate just because CSPA act allows me to. If possible, immigrate before you turn 21. In traditional (non-CSPA) cases a few years back, I know two separate cases where children who left on the brink of 21st birthday have been sent back from US airports, if they turned 21 during transit or before entering port of entry.

For anyone else reading this post, if you are over 21, CSPA does protect age out by reducing your age by the period of time the application was pending approval. In some cases, this period can be up to 5 years, thus allowing a 24-25 yr old unmarried child to immigrate with their parents under dependent derivative benefit. For immigration purpose, under CSPA act, the child is still 20-21 yr old only.

[jula 0]

... He was 18 at the time of this receipt. Priority date in F2A is April 03 so he will be frozen at this age and we can opt not to transfer when his dad naturlizes correct? I have contacted a few attorney's and none seem to know too much about this law. You are a wealth of information.

No, his age for immigration purposes will depend on a few factors and can only be known once the PD becomes curent.

Edited February 16, 2008 by jula

[jula 0]

So, does anyone know if an originally filed F2A beneficiary can stay in F2A after opting out of F1 conversion when parent naturalizes, or will he be in F2B after the opt-out?

My understanding is that, if you opt-out of F1, your son will stay in F2A. When his PD becomes curent, it will be determined if he is still eligible for that category (he did not aged out). If he did aged-out, he'll be put into F2B category... So, the question is if you can upgrade the petition to F1 after opting-out of it earlier ? I don't know...

[jennybirgitta 0]

My understanding is that, if you opt-out of F1, your son will stay in F2A. When his PD becomes curent, it will be determined if he is still eligible for that category (he did not aged out). If he did aged-out, he'll be put into F2B category... So, the question is if you can upgrade the petition to F1 after opting-out of it earlier ? I don't know...

I don't know about that either, I doubt it. But the CSPA also states that: "The beneficiary may elect not to have the petition converted – or if already converted, to have the conversion revoked" and "the beneficiary's eligibility for family-based immigration will be determined as if his or her parent had never naturalized."

I'm not going to opt-out until the PD becomes current, to have the conversion revoked then, because I filed when he was 20 years and 9 months. If they decide to approve the I-130, that only leaves 3 months and the CSPA won't apply. That's why I need to naturalize, who knows if they approve the petition early. F1 is a lot faster than F2B in my case. And if it will be determined 'as if I never naturalized', I am hoping that he will still be in F2A.

I realize this is complicated and I will probably need to talk to a lawyer. I am hoping to find a previous case like this to refer to.