Question about derivative status

[qyz891023 0]

She doesn't need a new visa. She's eligible for a derivative visa because her mom is getting an F2A visa. If she's already in the US, has lawful status, is eligible for a derivative visa, and a visa number is immediately available, then she can adjust status.

Read the I-485 instructions, page 1, under "Who May File Form I-485?", section 2:

2. Based on being the spouse or child (derivative) - at the time another adjustment applicant (principal) files to adjust status or at the time a person is granted permanent resident status in an immigrant category that allows derivative status for spouses and children.

A. If the spouse or child is in the United States,

the individual derivatives may file their Form I-485 with Form I-485 for the principal applicant, or file Form I-485 at anytime after the principal is approved if a visa number is available.

Her mom will be "granted permanent resident status in an immigrant category that allows derivative status for spouses and children" when she enters the US with her F2A visa. Unless they run of visa numbers in the meantime, she can file for adjustment of status. She doesn't have to return to her home country for a visa interview.

Ok i found the policy in i485 instruction, but what if US consulate schedule an interview for me with my mom, can i not go and wait till my mom comes here and then files i485? should i notify them?

[Jojo92122 1,924]

Ok, let me just make sure i get what you are saying here.

So we have 2 options.

1. I choose to do the visa interview with my mom at the same time in China when PD becomes current

2. I choose to follow to join, and file I485 anytime within 1 year after my mom gets her visa. NO. It has to be within one year of the PD becoming current if you want to take advantage of CSPA. The deadline for CSPA will expire before the deadline to file follow to join.

How do i make the choice though? send a letter to the consulate?

You make the choice by informing the NVC that you are not applying for an immigration visa and plan to do an adjustment based on follow to join. So instead of filing the DS-230 with the NVC, you will file an I-485 after your mom immigrates to the US.

[qyz891023 0]

You make the choice by informing the NVC that you are not applying for an immigration visa and plan to do an adjustment based on follow to join. So instead of filing the DS-230 with the NVC, you will file an I-485 after your mom immigrates to the US.

Ok what if i already filed DS-230 for the derivative, i just did whatever they asked me to do LOL.

[qyz891023 0]

also to be honest I did a calculation for my CSPA and I think am out of age already, so if thats the case, say I got rejected at the interview, do i just automatically drop to F3 and use the same PD or my mom has to file a brand new petition for me after she gets her green card?

[JimVaPhuong 4,863]

also to be honest I did a calculation for my CSPA and I think am out of age already, so if thats the case, say I got rejected at the interview, do i just automatically drop to F3 and use the same PD or my mom has to file a brand new petition for me after she gets her green card?

If you've aged out then you're no longer a derivative of your mom's F2A, and you can't adjust status. Your step-dad can't file a petition for you because he married your mom after you were 18. You'd have to wait until your mom immigrated and then she'd file a petition for you - F2B visa.

[Jojo92122 1,924]

If you've aged out then you're no longer a derivative of your mom's F2A, and you can't adjust status. Your step-dad can't file a petition for you because he married your mom after you were 18. You'd have to wait until your mom immigrated and then she'd file a petition for you - F2B visa.

The petition your mother would file for you would be a new case with a new Priority Date. You cannot keep your mother's PD.

[Jojo92122 1,924]

Ok what if i already filed DS-230 for the derivative, i just did whatever they asked me to do LOL.

Well, you will have to decide if you want to go to the interview.

If you go to the interview and you qualify for a visa under CSPA, then you will immigrate with your mother. The downside is that you cannot come back to the US before your mom, the principal beneficiary, if the US Embassy cancel your student visa.

If you don't want to go to the interview and you qualify as a derivative beneficiary under CSPA, then your mom can ask about you adjusting in the US. The downside is that you will have to pay to adjust your status with Form I-485 (a cost you can avoid by coming to the US on an immigration visa).

Don't bother to go to the interview if you don't qualify.

[qyz891023 0]

Well, you will have to decide if you want to go to the interview.

If you go to the interview and you qualify for a visa under CSPA, then you will immigrate with your mother. The downside is that you cannot come back to the US before your mom, the principal beneficiary, if the US Embassy cancel your student visa.

If you don't want to go to the interview and you qualify as a derivative beneficiary under CSPA, then your mom can ask about you adjusting in the US. The downside is that you will have to pay to adjust your status with Form I-485 (a cost you can avoid by coming to the US on an immigration visa).

Don't bother to go to the interview if you don't qualify.

OK just to want to make sure my CSPA calculation is correct, right now am 22 8months, and the time between I130 filed(6/28/2009) and I797 approval date(11/23/2010) is about 1 year and 5 month, so i take this off my age, i got 21 yo and 3 months, plus the PD has not still become current yet, meaning am out of ago whatsoever right?

What if Consulate send me a notice to ask me to go to the interview? can i not go? how to avoid?

also, based on what you said, this website is bullshit? http://www.rreeves.com/articles/immigration_en_10420.php unqualified CSPA child can automatically downgrade to F3

Edited September 2, 2011 by mikeqiu

[Jojo92122 1,924]

OK just to want to make sure my CSPA calculation is correct, right now am 22 8months, and the time between I130 filed(6/28/2009) and I797 approval date(11/23/2010) is about 1 year and 5 month, so i take this off my age, i got 21 yo and 3 months, plus the PD has not still become current yet, meaning am out of ago whatsoever right?

Based on the information you have provided, CSPA will not help you. Your CSPA age is now over 21. You do not qualify as a derivative beneficiary.

What if Consulate send me a notice to ask me to go to the interview? can i not go? how to avoid?

If you go to the interview and CSPA does not help, you will be denied an immigration visa. If it's determined that you have the intent to immigrate, your F1 student visa may be at jeopardy. I don't know if you will lose it or not, but it is possible. To avoid the interview, simply don't go. Your mom can ask about CSPA and whether you can do a follow to join.

also, based on what you said, this website is bullshit? http://www.rreeves.com/articles/immigration_en_10420.php unqualified CSPA child can automatically downgrade to F3

This is an article from 2006 from a law office. A lot has changed since then. Lots of lawsuits about CSPA that are still ongoing. The US government still maintains no retention of Priority Date. If you want to pursue this, be prepared to spend lots of money and time fighting in court.

[JimVaPhuong 4,863]

OK just to want to make sure my CSPA calculation is correct, right now am 22 8months, and the time between I130 filed(6/28/2009) and I797 approval date(11/23/2010) is about 1 year and 5 month, so i take this off my age, i got 21 yo and 3 months, plus the PD has not still become current yet, meaning am out of ago whatsoever right?

What if Consulate send me a notice to ask me to go to the interview? can i not go? how to avoid?

also, based on what you said, this website is bullshit? http://www.rreeves.com/articles/immigration_en_10420.php unqualified CSPA child can automatically downgrade to F3

This is getting so complicated it's giving me a headache.

The priority date was current the day the petition was approved. The January retrogression made it no longer current. However, I believe you may have locked your age in when your mom's priority date originally became current. Your CSPA age at the time would have been about 20 1/2 years. Confirm this with an immigration lawyer. If true, then you can still adjust status after your mother arrives, presuming your current non-immigrant status hasn't expired. If your eligible for an immigrant visa, and you're currently legally in the US, then the law usually won't make you leave the country for a visa interview - it will usually allow you to adjust status.

The next visa category for you would be F2B - not F3. F2B is for adult unmarried children of LPR's. F3 is for adult married children of US citizens. I haven't heard of the aspect of the CSPA that the lawyer was talking about in the article you linked. If true, it would allow you to retain your mother's priority date, but if you've aged out then you'd still be waiting for the priority date to become current in the F2B category. Going by the current visa bulletin, you'd still have about six more years to wait.

[qyz891023 0]

This is getting so complicated it's giving me a headache.

The priority date was current the day the petition was approved. The January retrogression made it no longer current. However, I believe you may have locked your age in when your mom's priority date originally became current. Your CSPA age at the time would have been about 20 1/2 years. Confirm this with an immigration lawyer. If true, then you can still adjust status after your mother arrives, presuming your current non-immigrant status hasn't expired. If your eligible for an immigrant visa, and you're currently legally in the US, then the law usually won't make you leave the country for a visa interview - it will usually allow you to adjust status.

The next visa category for you would be F2B - not F3. F2B is for adult unmarried children of LPR's. F3 is for adult married children of US citizens. I haven't heard of the aspect of the CSPA that the lawyer was talking about in the article you linked. If true, it would allow you to retain your mother's priority date, but if you've aged out then you'd still be waiting for the priority date to become current in the F2B category. Going by the current visa bulletin, you'd still have about six more years to wait.

Yes i know what you meant, our PD became current last December and then it got retrogressed.

Thank you so much for helping me and I have pretty much learned what i wanted to know. I think for now, we will just write an email to the consulate and let them know we will do follow to join. And after my mom gets her visa, we will file i485 for me while I'm in the US and see what happens.

Edited September 2, 2011 by mikeqiu

[JimVaPhuong 4,863]

Yes i know what you meant, our PD became current last December and then it got retrogressed.

Thank you so much for helping me and I have pretty much learned what i wanted to know. I think for now, we will just write an email to the consulate and let them know we will do follow to join. And after my mom gets her visa, we will file i485 for me while I'm in the US and see what happens.

PLEASE, before you entirely trust what I've said, consult with an immigration lawyer. I believe your age was locked when your mom's priority date originally became current, but I'm not certain about this. I'd hate to see you presume that you'll be eligible to adjust status based only on what I've said and find out later that it wasn't true.

[qyz891023 0]

Yes i will thanks a lot

[Jojo92122 1,924]

Retrogression - I hate you. Why must you complicate things?

This is a summary from some of my prior posts. If you want citations, look up my prior posts.

CSPA age is locked in if the derivative beneficiary "sought to acquire" a visa or adjust status when the PD first became current and BEFORE the PD retrogressed.

What is needed to fulfill the "sought to acquire" language of CSPA? Well, a court said that is does not require a filing of a DS-230 or I-485. Simply hiring an attorney or taking certain steps is sufficient. The Homeland Dept. and State Dept. would disagree since it's hard for them to figure when a person has taken steps to fulfill the "sought to acquire" language under the standard set out by the court. They would like an ascertainable action such as the filing of the DS-230 and/or I-485.

If a person does not fulfill the "sought to acquire" requirement to lock in his/her CSPA age before retrogression, then the person's CSPA will be determined when the PD becomes current again.

I have no idea how USCIS is going to treat you, Mikeqiu, when you attempt to adjust. By not going to the interview based on the DS-230, you may be deemed to have abandon the process and filing the I-485 is starting over which means your CSPA does not lock in the first time the PD was current. Or it could mean a continuation. CSPA and retrogression is new for everybody. Even lawyers are confused. Sometimes, it seems that no one knows the answers - including the US government.

Go see a lawyer, and best of luck to you.

[qyz891023 0]

Thank you very much Jojo, any idea on how to find a good lawyer for my case?