Confused about CSPA, especially in relation to the F4 category

[pm5k 129]

I am confused about how CSPA works:

 

Example: 

USC petitions sibling in 2010. 

Petition was approved, and A number was assigned, but per the Visa Bulletin a number is not available (no confusion so far).

Now, how does CSPA work in relation to the children of the beneficiary here?  I understand that there are two critical dates involved - the date the petition was approved, and the date that the visa is available. 

If a child was under 21 on the day the case was marked complete, are they protected? 

 

Also, I read that derivatives of F4 beneficiaries are simply no longer covered under CSPA, but there many appear to claim they are.

 

https://www.supremecourt.gov/opinions/13pdf/12-930_4g18.pdf

 

 

[arken 4,197]

32 minutes ago, pm5k said:

If a child was under 21 on the day the case was marked complete, are they protected? 

No, NVC could mark as complete several months before the visa becomes available. If the child's age (real or cspa age) is under 21 when the PD becomes current, then it's protected.

 

CSPA = age when PD becomes current - i130 processing time. 
 

F4 derivatives are eligible for cspa.

Edited September 22, 2021 by arken

[pm5k 129]

1 minute ago, arken said:

 

F4 derivatives are eligible for cspa.

Why is there conflicting information regarding this?  Was there a subsequent supreme court decision after the one posted above?

[aaron2020 11,651]

28 minutes ago, pm5k said:

Why is there conflicting information regarding this?  Was there a subsequent supreme court decision after the one posted above?

CSPA is complex.  There's conflicting information about CSPA because it was litigated.  The issue was can an aged out derivative beneficiary retain a parent's PD when a new I-130 is filed.  The US Supreme Court has stated there is no retention of the parent's PD when a new I-130 is submitted for an aged out derivative beneficiary.  The US Supreme Court did NOT SAY that CSPA does not apply to F4.  It only said that there is no retention of a parent's PD when a new I-130 is filed for an aged out for a derivative beneficiary.  

There should be no confusion as to when a beneficiary's age locks in - when the PD becomes current.  The NVC will collect fees and documents around a year BEFORE the PD becomes current, so that is why some people can still age out after their cases are Documentary Complete.   So, the NVC marking a case complete does not mean that the clock has stopped - the beneficiary can still age out.  This is because when the NVC collects information, the 2nd critical date that you mentioned - when a visa becomes available - has not occurred yet.  

Edited September 22, 2021 by aaron2020

[pm5k 129]

If I understand correctly, the "date visa is available" would be when a priority date is current (per visa bulletin).  For a case filed in 2010 (F4), there would be no such current date per the most recent (Oct 2021) visa bulletin, and therefore one can only estimate what the date would be

[SusieQQQ 11,586]

2 minutes ago, pm5k said:

If I understand correctly, the "date visa is available" would be when a priority date is current (per visa bulletin).  For a case filed in 2010 (F4), there would be no such current date per the most recent (Oct 2021) visa bulletin, and therefore one can only estimate what the date would be

Correct. You don’t know for sure whether someone is covered by CSPA until their priority date is listed in chart A of the visa bulletin.

 

edit for completeness: this assumes approval takes place before the PD is listed. If the PD is current before approval (as happens sometimes including with F2A at present) then the date the visa is available is the date of approval. Both factors need to be in place - approved petition and PD current - for a visa to be available. 

Edited September 22, 2021 by SusieQQQ

[pm5k 129]

So, in this example:

 

Initial filing: 2010

Derivative child born in 1995 (so 15 at the age time of filing)

Petition approved in 2015 (5 years)

Age of child when petition was approved: 20

Current visa bulletin states that F4 petitions from 2007 are being processed, so (I know this is not always the case) we assume 14 years in processing, which would mean that the 2010 petition may be current in 2024. 

 

At that time, the child born in 1995 will be 29.  Are they still protected by CSPA?

 

I know we can't truly predict when the date will be current, but I am just using this example to understand how the calculation works.

[SusieQQQ 11,586]

56 minutes ago, pm5k said:

So, in this example:

 

Initial filing: 2010

Derivative child born in 1995 (so 15 at the age time of filing)

Petition approved in 2015 (5 years)

Age of child when petition was approved: 20

Current visa bulletin states that F4 petitions from 2007 are being processed, so (I know this is not always the case) we assume 14 years in processing, which would mean that the 2010 petition may be current in 2024. 

 

At that time, the child born in 1995 will be 29.  Are they still protected by CSPA?

 

I know we can't truly predict when the date will be current, but I am just using this example to understand how the calculation works.

The calculation is CSPA age = actual age less time petition was pending (approval date minus priority date).

so as an example if the time the petition was pending was exactly 5 years, this gives 5 years “protection” to the beneficiary. That means he will be covered by CSPA until he is one day short of 26 (less 5 years gives him a CSPA age of one day short of 21 - remember he has to be under 21 on a CSPA basis).
So on your example if he has 5 years protection but a visa only becomes available when he is 29, then his CSPA age is 24 and he has aged out.

[aaron2020 11,651]

1 hour ago, pm5k said:

So, in this example:

 

Initial filing: 2010

Derivative child born in 1995 (so 15 at the age time of filing)

Petition approved in 2015 (5 years)

Age of child when petition was approved: 20

Current visa bulletin states that F4 petitions from 2007 are being processed, so (I know this is not always the case) we assume 14 years in processing, which would mean that the 2010 petition may be current in 2024. 

 

At that time, the child born in 1995 will be 29.  Are they still protected by CSPA?

 

I know we can't truly predict when the date will be current, but I am just using this example to understand how the calculation works.

CSPA will not protect the child from aging out.

 

It took USCIS about 5 years to approve the I-130, so an F4 derivative child would get an extra 5 years of CSPA protection.  Once the child is over age 26 and the PD is not current, the child will age out and CSPA will not help.  

[arken 4,197]

If you have the exact dates of PD and approval, calculate cspa assuming today is the PD current day.

 

cspa = his age today (years n months) - processing time (years n months)

 
Use years and months both, not just years.

 

This will tell how may months are left for him to not be protected so you don't need to keep estimation game.

 

For ex:

If he was born on Feb 1995, PD Feb 2010, approval Feb 2015, he has aged out, no cspa protection already even if PD becomes current today.

Edited September 23, 2021 by arken