CSPA Calculator Help

[pm5k 129]

Hello everyone, 

 

I always have trouble with the CSPA calculator.  How would it work in this case?

 

F4 Category 

PD: July 2010

Approval Date: July 2015

Child of F4 DOB: January 2005 (currently age 18)

 

Would this child be covered by CSPA?

[Aluvaboy 66]

24 minutes ago, pm5k said:

Hello everyone, 

 

I always have trouble with the CSPA calculator.  How would it work in this case?

 

F4 Category 

PD: July 2010

Approval Date: July 2015

Child of F4 DOB: January 2005 (currently age 18)

 

Would this child be covered by CSPA?

What is the country of chargeability of the principal applicant? (Place of Birth). This makes a big difference. In F4 category it will be many years for the priority date to become current! Some countries like Mexico it will take over 25 years for the PD to become current. 

[pm5k 129]

14 minutes ago, Aluvaboy said:

What is the country of chargeability of the principal applicant? (Place of Birth). This makes a big difference. In F4 category it will be many years for the priority date to become current! Some countries like Mexico it will take over 25 years for the PD to become current. 

Pakistan 

[Aluvaboy 66]

So the derivative beneficiary will get a 5 year advantage. F4 priority date is current to 22 March 2007 for Pakistan. As of now, it takes about 16 years for the PD to become current. Your PD is July 2010. Add to it 16 years and your PD may become current in 2026. At that time your derivative beneficiary will be 21 years old (current age plus 3 years). Subtract the 5 years CSPA allowance and his CSPA age will be 16 years. He is well within eligibility to receive the visa - provided that the F4 progresses the way it is progressing now! 

[pm5k 129]

1 hour ago, Aluvaboy said:

So the derivative beneficiary will get a 5 year advantage. F4 priority date is current to 22 March 2007 for Pakistan. As of now, it takes about 16 years for the PD to become current. Your PD is July 2010. Add to it 16 years and your PD may become current in 2026. At that time your derivative beneficiary will be 21 years old (current age plus 3 years). Subtract the 5 years CSPA allowance and his CSPA age will be 16 years. He is well within eligibility to receive the visa - provided that the F4 progresses the way it is progressing now! 

Thanks!

 

There is another sibling who is already 24.  I am guessing that even with CSPA, they aged out?  

 

 

Edited February 6, 2023 by pm5k

[Aluvaboy 66]

1 hour ago, pm5k said:

Thanks!

 

There is another sibling who is already 24.  I am guessing that even with CSPA, they aged out?  

 

 

If the sibling who is 24 now gets the benefit of CSPA, his current CSPA age is 19. If the PD becomes current in the next two years, he might get it too! Also I recently learned that some derivative beneficiaries were given some consideration due to the pandemic! It will really depend on the CO at that time!

[jan22 3,052]

22 hours ago, Aluvaboy said:

If the sibling who is 24 now gets the benefit of CSPA, his current CSPA age is 19. If the PD becomes current in the next two years, he might get it too! Also I recently learned that some derivative beneficiaries were given some consideration due to the pandemic! It will really depend on the CO at that time!

This is not something that a CO has discretion about -- agung out or not aging out is solely determined by the law.

[Aluvaboy 66]

The CO has some discretion! I know this for a fact. Two families who recently immigrated had children who aged out! Their names were not on the original interview calls. But after their appeal during their (parents) interview they were all allowed visas. 

[jan22 3,052]

On 2/7/2023 at 1:29 PM, Aluvaboy said:

The CO has some discretion! I know this for a fact. Two families who recently immigrated had children who aged out! Their names were not on the original interview calls. But after their appeal during their (parents) interview they were all allowed visas. 

That is undoubtedly because they qualified under CSPA that had perhaps not previously been applied or had been incorrectly calculated.   Their names may have bern dropped because CSPA had not been calculated until the parents called it to someone's attention.  If they had truly aged out after CSPA was applied correctly, they would not gave been issued visas.  I know for a fact that a Consular Officer has no discretion on things that are a matter of law.  They can only apply the law, not change it or alter the interpretation of it.

[Aluvaboy 66]

Here is the copy of an email received by one of the families. I have redacted the name for privacy. "We reviewed this petition for eligibility under the Child Status Protection Act CSPA and we determined XXXXXX  is not eligible. If you believe we made a mistake in our CSPA determination, please notify us at https://nvc.state.gov/inquiry. Please note that the NVC's CSPA determination is not final. A final determination will be made by the Consular Officer at the time of the applicant's interview". 

 

If what you say is true, the last statement "A final determination will be made by the Consular Officer at the time of the applicant's interview" need not be there. This derivative applicant's name was not in the original welcome letter. The request was made to add his name and the fee was paid. Then the above email was received. When the interview call was received, the derivative beneficiary's name was not there either.   When the parents went for the interview, yet another written request/appeal was given to the interviewing CO. He read the request and asked the parents to wait. After about 15-20 minutes (he went inside and discussed this with someone, I am  guessing), he came out and informed the parents that he would allow the derivative applicant's visa and gave him a date for interview. The derivative applicant finally got his interview in October, 2022. He is now in the US.

 

I calculated the CSPA age for this beneficiary multiple times and found that the beneficiary had aged out by about 8 months.  So I believe that it is not cut &dry as it sounds. There is some leeway that the CO can apply to cases like this! I am not sure if this had anything to do with Covid shut downs. The consulate was down for almost a year in 2020. 

[jan22 3,052]

23 hours ago, Aluvaboy said:

Here is the copy of an email received by one of the families. I have redacted the name for privacy. "We reviewed this petition for eligibility under the Child Status Protection Act CSPA and we determined XXXXXX  is not eligible. If you believe we made a mistake in our CSPA determination, please notify us at https://nvc.state.gov/inquiry. Please note that the NVC's CSPA determination is not final. A final determination will be made by the Consular Officer at the time of the applicant's interview". 

 

If what you say is true, the last statement "A final determination will be made by the Consular Officer at the time of the applicant's interview" need not be there. This derivative applicant's name was not in the original welcome letter. The request was made to add his name and the fee was paid. Then the above email was received. When the interview call was received, the derivative beneficiary's name was not there either.   When the parents went for the interview, yet another written request/appeal was given to the interviewing CO. He read the request and asked the parents to wait. After about 15-20 minutes (he went inside and discussed this with someone, I am  guessing), he came out and informed the parents that he would allow the derivative applicant's visa and gave him a date for interview. The derivative applicant finally got his interview in October, 2022. He is now in the US.

 

I calculated the CSPA age for this beneficiary multiple times and found that the beneficiary had aged out by about 8 months.  So I believe that it is not cut &dry as it sounds. There is some leeway that the CO can apply to cases like this! I am not sure if this had anything to do with Covid shut downs. The consulate was down for almost a year in 2020. 

The reason the statement about the Consular Officer making the final determination is included in the NVC e-mail is because NVC does not have authority to adjudicate any portion of a visa case.  They function as a clearinghouse for fees and document collection only -- a valuable function, but not the final authority in any part of the visa process.  Their statement does not mean a Consular Officer has any discretion outside that granted by law.  For example, there is discretion in determinIng whether the Affidavit of Support is sufficient, even if NVC "accepted" the document, because the law grants a Consular Officer the authority (i.e., the discretion) to make that determination based on the totality of the applicsnt's situation.  No such authority was granted for CSPA determinations. Therefore, there is no room for discretion with CSPA -- it is a mathematical equation that calculates whether someone is still under the age of 21 per the CSPA law.

 

The only COVID-related concession that could be made by the State Department (and was, in fact, made) regarding potentially aging-out cases was to include them in the list of "emergency" cases that could be processed as local conditions allowed during the shut-down. One of two things likely happened in the case you cited.  One -- there was some part of the data that was input into the CSPA equation that differed from the data the Consular Officer used.  (Common differences that effect CSPA eligibility are determing the date when the Priority Date first became "current" and the date the applicant "sought to acquire" the visa.)  Or, two -- the Consular Officer made a mistake. 

 

An applicant can question the dates used for the calculatiin to ensure they are correct, but there is absolutely no discretion for a Consular Officer to overrule the CSPA-formula calculated age.  I felt it important to respond to this thread again to avoid spreading false hope to applicants about getting a Consular Officer to use their discretion to approve a case when that discretion does not exist.