CSPA/Over-aging question on F2A

[sayocean 0]

Hello,

Have a quick question about our son's case and how it relates to the timeliness of the priority dates being current until next month. We are LPRs trying to get him in the country under an F2A Visa with a Priority date of October 16, 2012. As luck would have it we received the NOA2 a few days ago, notice date set to August 19, 2013. I believe the case will be sent and processed through the NVC as the Priority Dates on the Visa Bulletin are current (is this correct?).

Again, since the priority dates are current, I believe that he should be covered under CSPA regardless of whether or not the NVC finishes processing the necessary paperwork? Here are our via http://cspasolution.com/

Beneficiary's 21st birthday: 11/18/2012

Date visa became availabe: 8/19/2013

A visa becames available on the first day of the month that the DOS Bulltin says that the priority date has been reached. If a visa is already available when the I-130 is approved, however, the I-130 approval date is used.

Days the petion was pending: 305

Date visa became available MINUS days the petition was pending brings the date back to: 10/18/2012

Today is 8/23/2013. To keep the status of child based on the approved petition, you must seek LPR status by: 8/19/2014

That being said, if we file the DS-230 and I-864s as soon as we receive the case numbers from the NVC (which should be in a few weeks?), will he be covered by CSPA from being moved to F2B? If we get all the paperwork in time before October's retrogression, what would happen to the case if NVC doesn't finish processing the paperwork or schedules an interview until after October? Is there any way we can expedite the case? The thing we're really worried about is if he ages out to F2B.

Appreciate everyone's comments on this. Thank you!

Edited August 23, 2013 by sayocean

[Hypnos 6,576]

CSPA "locks in" the date provided that the child "seeks to acquire" a green card within one year of their priority date becoming current. You should be fine, and will not have to worry about ageing out into the F2B category.

[sayocean 0]

Thanks -- sorry if I'm getting too technical, but "seeks to acquire" means that would be the date he files the DS-230, correct? I think the timeline for this (hopefully) will go as follows:

September: we start processing paperwork through NVC, submitting DS-230 and I-864 and all related paperwork

October: Visa Bulletin for F2a "retrogresses" and we have to wait. Meanwhile case is on hold at NVC (?) and interview won't be held until they catch up to his Prioriry Date.

Thanks again for your thoughts.

[aaron2020 11,651]

Thanks -- sorry if I'm getting too technical, but "seeks to acquire" means that would be the date he files the DS-230, correct? I think the timeline for this (hopefully) will go as follows:

September: we start processing paperwork through NVC, submitting DS-230 and I-864 and all related paperwork

October: Visa Bulletin for F2a "retrogresses" and we have to wait. Meanwhile case is on hold at NVC (?) and interview won't be held until they catch up to his Prioriry Date.

Thanks again for your thoughts.

Sought to acquire is very technical.

Here is the straight dope.

Your son will not age out. His CSPA age was locked in under 21 when he filed the DS-230. By filing the DS-230, he meets the US government's definition of "sought to acquire." He will not age out into the F2b category because he qualifies under the F2a category.

Best of luck.

[sayocean 0]

Great! Thank you. So all we need to do is make sure we file DS-230 within September. Stoked.

[aaron2020 11,651]

Great! Thank you. So all we need to do is make sure we file DS-230 within September. Stoked.

The safest thing is to get it in as soon as possible.

Mail can get lost. The DS-230 may not be received until October. Etc. Etc.

There is only the small chance that Retrogression in October (if it happens) will affect him. It would have to roll back to before his PD and remain uncurrent for a year.

I am not trying to stress you out. I strongly believe that Retrogression will not roll the PD back to make your son's PD uncurrent. Just wanted you to know that what matters is when the NVC receives the DS-230 and not when you mail it out.

[sayocean 0]

Yeah, and the one thing that could be a killer here is that we don't know when the NVC will receive the case and assign the case number. I read through the shortcut post on the Wiki (http://www.visajourney.com/wiki/index.php/LingChe_NVC_ShortCut) which made sense but we just called the NVC and they claimed it could take "up to 8 weeks" to just receive the case from USCIS. If it takes them that long for us to even get a case number that means we'll miss the September "window" to file the DS-230.

We'll keep calling and pushing either way. Thanks again.

[aaron2020 11,651]

Yeah, and the one thing that could be a killer here is that we don't know when the NVC will receive the case and assign the case number. I read through the shortcut post on the Wiki (http://www.visajourney.com/wiki/index.php/LingChe_NVC_ShortCut) which made sense but we just called the NVC and they claimed it could take "up to 8 weeks" to just receive the case from USCIS. If it takes them that long for us to even get a case number that means we'll miss the September "window" to file the DS-230.

We'll keep calling and pushing either way. Thanks again.

Exactly. Expect the unexpected. There are many reasons why the DS-230 could be late. You cannot control most of them. The only thing you can control is when you mail the DS-230. Send it in ASAP. You cannot plan for an unanticipated event. You have to do your best to get the DS-230 in ASAP since it's the best you can do.

There was a couple on here recently who filed an I-130 and never received an NOA1. USCIS has no record of receiving it. Somehow it got lost in the mail. They had to start all over from the beginning. Just because you sent it does not mean that USCIS received it. Keep on top of your case like you have been doing. Good for you.

Good luck.

Edited August 23, 2013 by aaron2020

[sayocean 0]

One thought -- can we mail out the DS-230 before being assigned a case number via the NVC? Just realized that we have all the required documentation for it, and there's no field asking for the NVC case number anyway.

Definitely sending out all documents with signature confirmation Express.

Edited August 23, 2013 by sayocean

[aaron2020 11,651]

One thought -- can we mail out the DS-230 before being assigned a case number via the NVC? Just realized that we have all the required documentation for it, and there's no field asking for the NVC case number anyway.

Definitely sending out all documents with signature confirmation Express.

No. You need to pay the fees online, then print out the bar code to go with the DS-230.

Don't know if the NVC will accept mail requiring a signature. You need to look into this. You don't want your mail delay or sent back if no one can sign for it.

[sayocean 0]

Here's another question on technicality of the "sought to acquire" statement. As I'm reading around, the definition of it includes something to the effect of "The child must "seek to acquire" his or her visa within one year of when that visa becomes available (or priority date was current)."

He is aging out on the 25th of next month. Let's just say that the NVC does not receive the paperwork from the USCIS by then. Does that mean, since the priority date was current on August and September, that he has a year AFTER the priority date became current (i.e., August 1st) to file the DS-230?

[aaron2020 11,651]

Here's another question on technicality of the "sought to acquire" statement. As I'm reading around, the definition of it includes something to the effect of "The child must "seek to acquire" his or her visa within one year of when that visa becomes available (or priority date was current)."

He is aging out on the 25th of next month. Let's just say that the NVC does not receive the paperwork from the USCIS by then. Does that mean, since the priority date was current on August and September, that he has a year AFTER the priority date became current (i.e., August 1st) to file the DS-230?

Look through my other threads. I don't have the energy to type it all over.

Here is the short version:

The US Government defines "sought to acquire" as filing for a visa (DS-230) or adjustment (I-485). There were a few cases where the immigration courts said "sought to acquire" means taking steps towards filing which can but is not limited to hiring a lawyer to file the forms. The US Government has not conceded and applies its standard. Want to fight it, then you will need to hire a lawyer and file a lawsuit.

He has up to one year to "sought to acquire" a visa while his PD is current. He has until July 31, 2014, if his PD remains current. If his PD becomes retrogress and no longer is current and he has "not sought to acquire" a visa, then CSPA does not apply until his PD becomes current again.

For example: If in October, the current PD retrogress to July 1, 2010, then your sibling's PD will no longer be current. If his DS-230 has not been filed, then CSPA will not apply.

This example is highly unlikely to happen. I don't believe that the current PD will roll back that far. I understand your anxiety, but concentrate on getting the DS-230 ready to go as soon as you can print out the bar code page after paying the online fees.

[sayocean 0]

Right, that makes sense -- we get it but does the 1 year ticker start when the petition is approved by the USCIS? I guess I still don't have a clear definition as to when priority dates become current. Does this mean they become current for approval from the USCIS, or current for processing by the NVC? As it stands we're simply waiting for a case number from the NVC and if that doesn't happen in the next four weeks, my understanding (and concern) is that CSPA won't apply.

[aaron2020 11,651]

Right, that makes sense -- we get it but does the 1 year ticker start when the petition is approved by the USCIS? No. It starts when your sibling's PD first became current in the Visa Bulletin. You will need to look up the old bulletins to figure out when his PD first became current. Iguess I still don't have a clear definition as to when priority dates become current. Does this mean they become current for approval from the USCIS, or current for processing by the NVC? As it stands we're simply waiting for a case number from the NVC and if that doesn't happen in the next four weeks, my understanding (and concern) is that CSPA won't apply.

Current for a visa. The PD must be current in order for there to be an available visa. It has nothing to do with USCIS approval. It has nothing to do with NVC processing. The PD deals strictly with the availability of a visa.

[sayocean 0]

Then that would be August 1st then, when all F2A visas became current in the system. That buys us an extra two weeks in the worst case that the F2A retrogresses behind his priority date in October... I think. Because according to CSPA, his "age" will turn 21 on October 21st... if I'm reading this correctly.

If that's the case, that means we're safe and do not need to stress out on when the NVC will receive the case and assign it a case number.