Does CSPA apply to F4 Derivative Beneficiaries (Nephew/Nice)?

[svusa 0]

Folks,

 

I'm bit confused how CSPA is applied to F4 derivative beneficiaries (Nephew/Nice). Some law firms suggest that, in 2014 supreme court ruled that CSPA is not applicable in all categories and would lead to minors derivative beneficiaries aging out by the time visa gets available in the F4 category.  My situation is as follow:

 

US citizen filed for Sister (her family) to immigrate in F4 category

 

Filing date of I-130: June 01, 2011

Priority Date as per Visa Bulletin: Dec 01, 2005

Current I-130 status: Pending (no other correspondence except acknowledgement of the receipt) 

 

Situation: 

My nephew will turn 21 year old in February of 2022. Let's assume in next couple of years, USCIS will process and approve I-130. 

 

Question:

Can CSPA reduce my nephew's age by using formula,

 

Pending Time = I-130 approval time - I-130 filing date (priority date)

 

CSPA Age = Age at time of visa availability - Pending time 

 

For example, if I-130 get approved in June of 2023, would pending time be considered as June2023 -June2011 = 12 years? This could reduce his CSPA age when visa becomes available down the road, provided CSPA is applicable to the derivatives in the F4 category. 

 

Suprime Cort Case: https://www.visalawyerblog.com/supreme-court-rules-children-turn-21-must-restart-immigration-process/

 

Any thoughts?🤔

 

Cheers

 

 

 

 

[arken 4,197]

CSPA is still alive for all. That 2014 case was a unique, may be there is more to it that's not public

 

45 minutes ago, svusa said:

 

For example, if I-130 get approved in June of 2023, would pending time be considered as June2023 -June2011 = 12 years? This could reduce his CSPA age when visa becomes available down the road, provided CSPA is applicable to the derivatives in the F4 category. 

Yes. 

 

[SusieQQQ 11,587]

I don’t know about the 2014 case, do know that CSPA applies to all derivatives in family categories (as well as some others). Yes, you will hope for approval to take as long as possible to give your nephews and nieces maximum protection under CSPA.

[svusa 0]

Thanks.. I consulted a Lawyer and he was of the different opinion, is there a CSPA calculator that USCIS publishes? My interpretation of what's on USCIS website is that CSPA should be applicable to F4 derivatives. Hope someone has gone through this process recently. 

[SusieQQQ 11,587]

2 minutes ago, svusa said:

Thanks.. I consulted a Lawyer and he was of the different opinion, is there a CSPA calculator that USCIS publishes? My interpretation of what's on USCIS website is that CSPA should be applicable to F4 derivatives. Hope someone has gone through this process recently. 

There are countless people (derivatives) on this website who have got visas under CSPA protection. And of course what is on the uscis website is applicable to F4 derivatives. Also you don’t need a lawyer, the calculation is done automatically by the consular officer.

Edited July 2, 2021 by SusieQQQ

[svusa 0]

That's super helpful... Thanks for clearing my doubts. Real people experience is far better than what Google is going to tell you, hence I decided to post here 😁 

[HRQX 4,145]

1 hour ago, svusa said:

Suprime Cort Case: https://www.visalawyerblog.com/supreme-court-rules-children-turn-21-must-restart-immigration-process/

That case is not about the traditional derivative process. In that case the principal beneficiary immigrated and then filed new petitions for F2A cases. The new beneficiaries were trying to game the system be falsely asserting that they should somehow retain the same priority date as the original (i.e. the one the principal beneficiary used to immigrate) petition. The Supreme Court disagreed with them: https://casetext.com/case/scialabba-v-de-osorio "Respondents, principal beneficiaries who became LPRs, filed petitions for their aged-out children, asserting that the newly filed petitions should receive the same priority date as their original petitions. Instead, U.S. Citizenship and Immigration Services (USCIS) gave the new petitions current priority dates. The District Court granted the Government summary judgment, deferring to the Board of Immigration Appeals' (BIA's) determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3). The en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention." "The [Ninth Circuit] judgment is reversed, and the case is remanded."

[svusa 0]

17 minutes ago, HRQX said:

That case is not about the traditional derivative process. In that case the principal beneficiary immigrated and then filed new petitions for F2A cases. The new beneficiaries were trying to game the system be falsely asserting that they should somehow retain the same priority date as the original (i.e. the one the principal beneficiary used to immigrate) petition. The Supreme Court disagreed with them: https://casetext.com/case/scialabba-v-de-osorio 

 

Thanks for sharing this information, I'll have to study this case further.  I'm not sure why some law firms are suggesting CSPA is not applicable in F4 category. It almost sounds like, if you 'age out' after applying CSPA formula, you can't retain original priority date and will be treated as a new applicant/beneficiary  under respective category.. 

Edited July 2, 2021 by svusa

[arken 4,197]

15 minutes ago, svusa said:

I'll have to study this case further. 

Why to waste time on sth not related to you. You may rather utilize time by going through several cspa utilized F4 cases in this forum and just be happy seeing those.

[SusieQQQ 11,587]

3 hours ago, svusa said:

 

Thanks for sharing this information, I'll have to study this case further.  I'm not sure why some law firms are suggesting CSPA is not applicable in F4 category. It almost sounds like, if you 'age out' after applying CSPA formula, you can't retain original priority date and will be treated as a new applicant/beneficiary  under respective category.. 

yes, that is exactly the case. CSPA applies to beneficiaries whether principal or derivative , but if they still age out after applying CSPA protection that’s game over for that category . If a new petition is then filed for them, this new petition will be a different category and have a different petitioner , and will have a new priority date of when it was filed.

 

as for law firms getting it wrong, you’d be surprised how often we see that here.

 

 

Edited July 2, 2021 by SusieQQQ

[svusa 0]

On 7/2/2021 at 3:46 PM, SusieQQQ said:

 

 

as for law firms getting it wrong, you’d be surprised how often we see that here.

 

 

I talked to my Attorney and he is still not convinced CSPA is applicable in F4 category. According to him, Pending time would be applicable if I-130 is still pending at the time of Visa availability. (essentially freezing the age at the time of visa availability). I think that's contradicting to way it has been explained on USCIS website. 

 

has anyone successfully reduced their age in F4 category? Hoping there is someone out here, who was able to take advantage of CSPA way it makes most sense.

[arken 4,197]

6 minutes ago, svusa said:

I talked to my Attorney and he is still not convinced CSPA is applicable in F4 category. According to him, Pending time would be applicable if I-130 is still pending at the time of Visa availability. (essentially freezing the age at the time of visa availability). I think that's contradicting to way it has been explained on USCIS website. 

 

has anyone successfully reduced their age in F4 category? Hoping there is someone out here, who was able to take advantage of CSPA way it makes most sense.

That just tells you need to fire your lawyer if you want success in your case. Search for cspa in those forum and you will find many F4 cspa successful cases.

[NigeriaorBust 4,087]

The hard part may end up that the children must remain single until they are in the US.  AT 21 he may look to have family of his own before then. 

[SusieQQQ 11,587]

8 hours ago, svusa said:

I talked to my Attorney and he is still not convinced CSPA is applicable in F4 category. According to him, Pending time would be applicable if I-130 is still pending at the time of Visa availability. (essentially freezing the age at the time of visa availability). I think that's contradicting to way it has been explained on USCIS website. 

 

has anyone successfully reduced their age in F4 category? Hoping there is someone out here, who was able to take advantage of CSPA way it makes most sense.

Find an attorney that actually has experience with F1-F4 cases with derivatives. 

[aaron2020 11,651]

8 hours ago, svusa said:

I talked to my Attorney and he is still not convinced CSPA is applicable in F4 category. According to him, Pending time would be applicable if I-130 is still pending at the time of Visa availability. (essentially freezing the age at the time of visa availability). I think that's contradicting to way it has been explained on USCIS website. 

 

has anyone successfully reduced their age in F4 category? Hoping there is someone out here, who was able to take advantage of CSPA way it makes most sense.

Your attorney is incompetent.  CSPA applies in the F4 category.  

What the hell does "pending time would be applicable if I-130 is still pending at time of Visa availability" mean?  That's useless double talk.

 

I have helped PLENTY of people with CSPA calculations.  I've know of MANY people who aged out and benefited from CSPA.

 

Here's something to consider, I have NEVER heard of a F4 case that USCIS has not approved in 10 years.  It's likely that USCIS approved the I-130 years ago and has already forwarded it to the NVC.