F2A being "CURRENT" + CSPA

[mtran1001 0]

Hi All,

My mother in law just got her green card. She wonders if she could take advantage of the August "Current" chance to apply I-131 for her aging out daughter (BD: 9/10/1992). Per my understanding, I would say it's possible for her to get her priority date before she turns 21 in a month on 9/10/2013. Then, her PD would be current right away. So, if her case is approved in 6 months, her visa will be available right on her approval date. With CSPA rule, her age is still under 21. Am I correct? Do I have to include the NVC times too?

Hope to hear your answer soon. I'd really appreciate it.

Thanks,

Michael.

[shabbera 7]

I think this is very tricky, it prob won't work unfortunately. There is a very very very tiny chance it would so if you have extra money to spend then go ahead with it.

This is the requirements. Lets say she gets a PD of September 9, 2013 for arguments sakes - now what is going to happen is that they will take the number of days it takes for the i-130 to be approved and subtract it by the priority date and basically get an adjusted age which in this case would be under 21. However, the catch is that - they will consider the date when the PD becomes current on the Visa Bulletin. So lets say for arguments sake they approve the i-130 and the VB is not current yet - then you will age out of the category. If the VB becomes current and your i-130 is still not approved, that will be the best situation for you, b/c it will push your date back sufficiently enough that you fall under 21. What you can do is purposely after you file the i-130 and get your PD, keep delaying the case by not giving them the correct evidence photocopies they require so that they keep sending you RFEs, each time they do that it pushes their processing back months. Again this is all theoretical, you should consult an attorney, I'm not one for sure - but this my understanding.

Read this below:

CSPA Coverage for Children of Green Card Holders

Mr. Wheeler explained that unmarried children of LPRs have a strong incentive to remain in the second-preference 2A category, as opposed to “aging out” and moving into the 2B category, because the 2B category is backlogged much further than the 2A category. In an example, Mr. Wheeler noted that for citizens of most countries, the difference between being in the 2A versus the 2B category means waiting approximately five years for the visa to become current versus waiting almost nine years otherwise. For citizens of Mexico and the Philippines, the disparity and additional wait is even longer.

Children in the second-preference 2A category will preserve their 2A status upon turning 21, if they are under 21 using their “adjusted age” (see below) on the date the 2A category visa becomes available for their priority date.

The adjusted age is determined by subtracting the number of days the I-130 petition was pending before being approved by USCIS from the biological age:

Adjusted Age:

Current Age – (the number of days in between the I-130 adjudicated date and the date filed) = CSPA Age

Under current law, they have one year from the date they became current to seek adjustment of status or an immigrant visa.

How to Qualify for CSPA

Immediate Relative

Preference Classification for Permanent Residence or Derivative

• If the petition (Form I-130, Petition for Alien Relative) was filed by a U.S. citizen parent for his or her child, the beneficiary’s age “freezes” on the date of filing.
• If the petition (Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized.

• CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

Hi All,

My mother in law just got her green card. She wonders if she could take advantage of the August "Current" chance to apply I-131 for her aging out daughter (BD: 9/10/1992). Per my understanding, I would say it's possible for her to get her priority date before she turns 21 in a month on 9/10/2013. Then, her PD would be current right away. So, if her case is approved in 6 months, her visa will be available right on her approval date. With CSPA rule, her age is still under 21. Am I correct? Do I have to include the NVC times too?

Hope to hear your answer soon. I'd really appreciate it.

Thanks,

Michael.

[mtran1001 0]

Hi Shabbera,

Thank you very much for your comments. I don't know if you know about the VB this month because it's for the first time all the PD is CURRENT now. So, as a result, any case which is submitted this month will be CURRENT right away if their PD is still in August. In fact, the new VB for next month is still applied. And with CSPA rule, in theory, any aging out children who is applying now and can get their PD within August or Sept and still under 21, would be still qualified no matter how long their case is approved. This is really a very good news for them and this is a rare chance in decades that ALL cases in F2A are CURRENT in this month and next month. I hope I'm correct. I've tried to ask the local lawyers about this but none of them could verify this since it's kind of special situation that never happened before. Usually, the PD will be CURRENT after the case is approved. Then, we can add the differences to the child age at the PD to find out the CSPA age. With the PD is Current immediately, I'm not sure how it is calculated. I've also tried to use many CSPA calculation websites out there and they all use the approval date for visa availability and so our case is qualified. I hope they're correct. Anyway, if you know any lawyers, please ask them about this and let me know.

Thanks,

Michael.

[NigeriaorBust 4,087]

Age only freezes for children of USC's at date of filing. For LPR you use CPSA which subtracts the delta between filing date and approval days from the persons age. So if you can get a petition submitted and approved and then get his medical and interview before he ages out then you are ok .

[aaron2020 11,651]

Hi All,

My mother in law just got her green card. She wonders if she could take advantage of the August "Current" chance to apply I-131 for her aging out daughter (BD: 9/10/1992). Per my understanding, I would say it's possible for her to get her priority date before she turns 21 in a month on 9/10/2013. Then, her PD would be current right away. So, if her case is approved in 6 months, her visa will be available right on her approval date. With CSPA rule, her age is still under 21. Am I correct? Do I have to include the NVC times too?

Hope to hear your answer soon. I'd really appreciate it.

Thanks,

Michael.

The most that CSPA can protect her is about 23 days at this point.

Her age will not freeze when the I-130 is filed. This is a family preference case so age is frozen only when the PD is current and the beneficiary has "sought to acquire" LPR status.

Only the time that it takes USCIS to approve the I-130 is not counted against the beneficiary. The time after the I-130 is approved and her PD becoming current is counted against her.

There is no way to "game" the system with "delaying approval of the I-130." If you get an RFE, it doesn't mean that it would take longer to approve the I-130 than if you didn't get an RFE. For example, you get an RFE in 2 months. It takes 5-8 months normally. You have no guarantee that once the case is pulled for the RFE that USCIS may process the case after you send in the needed documents or the case is rejected. This is a stupid and dangerous game you should not engage in.

The critical time is after the I-130 is approved. if her PD is not current, then she only gets 23 days of protection. After 23 days, she will age out. If her PD stays current, her CSPA age will be under 21.

There is nothing you can do to change things. Best move is to file as soon as possible and hope the PD does not regress beyond her PD.

[cece0206 0]

Isn't it unfair to those who age out. I filed for my son on on Apr 2011 and was approved on Aug 2011 so he only have 4 months of protection and he was 20 years and 15 days old at that time. If the situation this time happened on 2011 he could have qualified.

[aaron2020 11,651]

Isn't it unfair to those who age out. I filed for my son on on Apr 2011 and was approved on Aug 2011 so he only have 4 months of protection and he was 20 years and 15 days old at that time. If the situation this time happened on 2011 he could have qualified.

Why is it unfair? Family based immigration beneficiaries are not promised anything, or are they entitled to anything. The rules did not change. Circumstances changed - the number of applicants decreased so people are getting visas faster.

Same number of visas. More applicants means a longer average wait. Few applicants means a shorter average wait.

Nothing changed to make it unfair.

[cece0206 0]

Should at least count the CSPA from when it was filed to when its PD becomes current.

[sephiroh 0]

how long is gonna take if it is current?

[mtran1001 0]

Hi Aaron,

Thanks a lot for your input. I'm still confused about what you said, "Her age will not freeze when the I-130 is filed" and "Only the time that it takes USCIS to approve the I-130 is not counted against the beneficiary" since they are conflicting. I think her age will freeze when her PD is set. So, she would lose a few days from the mailing to when USCIS set her PD. Then, CSPA will protect her until I-130 is approved. At this time, if her PD is not current in 20 days, for instance, she would age out. However, since the special circumstance for Aug/Sept, her PD would be current and her visa would be available at that time, she would not age out and her age would freeze no matter how long NVC take to interview her. Am I right?

Thanks again,

Michael.