LPR child aging out

[hellonh 0]

CASE: F2A (PR father filed for Son under 21, who is aging out)

USCIS RECEIPT DATE= 4/28/2010

PRIORITY DATE = 4/23/2010

CASE APPROVED = 8/26/2010

DS230 MAILED DATE = 12/14/2010 (CASE WAS CURRENT AT THIS TIME. NVC WAS PROCESSING 8/10/2010 CASES

CASE COMPLETED BY NVC -1/5/2011- (RETROGRESSION OCCURRED- MOVED FROM 8/10/2010 TO 1/8/2008.

My father filed for my brother’s petition in 2010. At the time when petition was filed, he was only 19. My brother will turn 21 in July 14, 2012. Given the movement in Visa bulletin for F2A, we are hopeful that his case might be current prior to July 14, 2012. If the case does not become current in July 14, 2012:

1.Does the CSPA apply to him?

2.For how long he will remain a child for CSPA purpose.

3.I do not know how to interpret below as my brother is still back in my country. How do you seek for LPR when he is still in my homeland? We had filed DS230 for him in 12/14/2010 when his visa was still current. Is this considered seeking for LPR? Since his DS230 was filed when his visa number was current, can I appeal to NVC to process his case?

Visa Retrogression and CSPA Beneficiaries

Source: http://www.dhs.gov/files/programs/cisomb-telecon-cspa.shtm

Mr. Wheeler noted that while the Visa Bulletin moves in both directions, most countries experienced visa retrogression in January and February 2011. He explained that children under 21 who filed for adjustment of status when they were current in the 2A category may find themselves ineligible to adjust due to visa retrogression. The National Benefits Center (NBC) follows a policy of holding onto the adjustment applications in those cases and adjudicating the case or rescheduling the adjustment interviews once the 2A visa category becomes current again. If the applicant attempts to file when the visa has retrogressed and is no longer available, the NBC will reject the application. Mr. Wheeler stated the NVC will not schedule the visa interview until the visa is available, and will suspend processing if the visa has retrogressed and is no longer current. Visa retrogression affects both the adjusted age calculation and the one-year filing requirement.

Mr. Wheeler highlighted three categories of applicants affected by visa retrogression that may be interested in seeking CSPA coverage:

• Applicant has waited more than one year to seek LPR status after the visa became available, and then the visa retrogresses. That child may not take advantage of the CSPA and visa retrogression is essentially irrelevant.

• Applicant is under 21 using his or her adjusted age and then filed for adjustment of status during the one-year window before visa retrogression. The subsequent visa retrogression will not affect that child; his or her 2A status is locked in. It does not matter when the visa becomes available again or how long it takes to complete the adjustment process. The same outcome should occur if the visa retrogressed before the child filed for adjustment, but then became available again during that initial one-year window and the child filed for adjustment before the end of that one year.

• Applicant is under 21 using the adjusted age delays filing for adjustment of status and the visa retrogresses, preventing the child from filing before the one year period has passed. In that case, USCIS calculates the applicant’s age using CSPA principles on the date the visa becomes available the second time. If the child is under 21 on that date, he or she has one year from that date to seek LPR status (file for adjustment of status, an immigrant visa, or an I-824 under the agencies’ current interpretations). Thus, a second one year window opens up on the date the priority date becomes current again, but the applicant’s CSPA age is calculated on that date, not on the date the 2A category first became current.

Mr. Wheeler detailed additional interpretations, including (1) the one year clock does not begin to run until the visa becomes available the second time. In other words, if the visa retrogressed before the one-year period had run, then the child would be provided a second one-year period when the visa became current again. This is similar to the current USCIS interpretation, only without the CSPA age calculation on the date the visa subsequently becomes available; and (2) visa retrogression merely tolls the running of the one year period, and it begins where it left off once the visa becomes available the second time.

[JimVaPhuong 4,863]

The requirement to lock the age is that they seek to adjust status if they're in the US, or seek to acquire a visa if they're outside the US, within one year of the visa number first becoming available. Filing a DS-230 is usually sufficient proof that he sought to acquire a visa. His age should have been locked at that time.

USCIS has defined the term “sought to acquire” as filing for adjustment of status,

filing for an immigrant visa

, or filing a Form I-824, Application for Action on an Approved Application or Petition.

...

In some cases, the immigrant visa applicant will have returned the Form DS-230 Part 1 before the visa becomes available because the National Visa Center (

NVC

) often sends out the instruction packet in anticipation of the visa becoming current in the near future. In those cases, the applicant will satisfy the one-year filing requirement if the Form DS-230 Part 1 is received before the visa is current.

[hellonh 0]

Thank you for your comment. In his case DS230 was mailed and received by NVC when his case was still current, i.e, in December 2010, NVC was still processing case for August 08,2010. Which means his age froze when NVC acknowledge receipt of DS230 on 12/28/2010? Am I right in my assumption?

Also, If his case becomes current passed July 14,2012, he is still eligible for CSPA no matter how long it takes? Am I correct?

[JimVaPhuong 4,863]

Thank you for your comment. In his case DS230 was mailed and received by NVC when his case was still current, i.e, in December 2010, NVC was still processing case for August 08,2010. Which means his age froze when NVC acknowledge receipt of DS230 on 12/28/2010? Am I right in my assumption?

Also, If his case becomes current passed July 14,2012, he is still eligible for CSPA no matter how long it takes? Am I correct?

Yes. If the information you've provided is accurate then his age was locked when his DS-230 was received. It doesn't matter how long it now takes before his priority date once again becomes current.

[hellonh 0]

Thank you Jim for your comments. It has relieved me in a great deal.

[hellonh 0]

Hello Jim

I think you are correct. I found below from source listed here in. If I-485 is equivalent to DS 230, yes my borther age froze at the time when NVC received DS 230. I have an email from NVC acknowledging the receipt of DS 230. Thank goodness I sent them email prior to 12/31/2010. I had failed to retain the postmark receipt.

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

Visa Availability Date Regression

If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the Service should retain the Form I-485 and note the visa availability date at the time the Form I-485 was filed. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” using the visa availability date marked on the Form I-485. If, however, an alien has not filed a Form I-485 prior to the visa availability date regressing, and then files a Form I-485 when the visa availability date again becomes current, the alien’s “age” should be determined using the subsequent visa availability date.