I-130 derivative child

[SalmaH 0]

Hello all. I am trying to get some info regarding our pending case so any help is appreciated. In 2005 my aunt applied for I-130 for my father and the case was approved in 2010. My Aunt became I'll and over time her memory was not that great. A couple of months ago, my cousin reached out and told us that the visa priority date had come up almost 4 years ago and he would try to see what he can do to get this case rolling. Reached out NVC and they provided all the details we need to get the DS-260 going and they stated that we had to add the derivative children on there as well. We went ahead and requested for the choldren to be added but only 2 out of the 4 children were added. I am trying to figure out the CSPA age and why the other 2 were denied. In the message we got, they stated that if we believe that the CSPA is wrong then to reach out via NVC Inquiry.

 

Based on my calculation the application was pending for 1686 days (4 years, 7 months, 11 days).

 

Child 1 DOB: 1999 - Denied

Child 2 DOB: 2000 - Denied

Child 3 DOB: 2004 - Added

Child 4 DOB: 2006 - Added

 

Please advice.

[Boiler 45,581]

I would have thought child 2 would qualify. Maybe 1.

[SalmaH 0]

17 minutes ago, Boiler said:

I would have thought child 2 would qualify. Maybe 1.

 

Yes that's what I thought. Here's the ages I have. Any advice on what I can send in NVC inquiry?

 

Child 1 (Denied)

Current Age: 24 Years, 1 Months, 14 Days

Priority Date Age: 6 Years, 1 Months, 7 Days

Approval Date Age:  10 Years, 8 Months, 20 Days

Availability Date Age: 19 Years, 7 Months, 4 Days

Child 2 (Denied)

Current Age: 23 Years, 0 Months, 9 Days

Priority Date Age: 5 Years, 0 Months, 2 Days

Approval Date Age: 9 Years, 7 Months, 15 Days

Availability Date Age: 18 Years, 5 Months, 29 Days

Child 3 (Added)

Current Age:  19 Years, 7 Months, 29 Days

Priority Date Age:  1 Years, 7 Months, 22 Days

Approval Date Age:  6 Years, 3 Months, 5 Days

Availability Date Age:  15 Years, 1 Months, 19 Days

Child 4 (Added)

Current Age:  16 Years, 9 Months, 21 Days

Priority Date Age: Not Yet Born

Approval Date Age:  3 Years, 4 Months, 27 Days

Availability Date Age:  12 Years, 3 Months, 11 Days

Edited October 12, 2023 by SalmaH

[Aluvaboy 66]

I am thinking that only the first two children were included in the original I-130 petition filed by the petitioner for her brother (in the respective section about beneficiary's family). The third child was omitted by mistake and the fourth child was not born. The priority date became current four years ago. When the DS260 was completed two months ago, the beneficiary listed the names of all children. There is a “Sought to Acquire” requirement Under the Child Status Protection Act. Which means beneficiaries should apply for the visa within one year  once the PD becomes current. If the application was not made within that one year, they forfeit the claim. The third and fourth child did not lose the claim because they were only added on the DS260 recently.  

[Chancy 6,241]

1 hour ago, SalmaH said:

my cousin reached out and told us that the visa priority date had come up almost 4 years ago

 

It's possible that the children lost their eligibility because they did not meet the "Sought to Acquire" requirement.  It seems you haven't submitted DS-260 for the children even after 4 years from the PD becoming current.

 

For family-preference categories, visa applicants (including derivative beneficiaries) must seek to acquire LPR status within one year of visa availability, to benefit from CSPA.  Refer to https://fam.state.gov/fam/09FAM/09FAM050201.html

 

[Boiler 45,581]

Yes that makes sense, 3 and 4 do not need CSPA.

[SalmaH 0]

It seems the Sought to Acquire is the issue. We've just come to find out we even had an approved visa pending out there for us. Are we able to overturn or appeal this decision? Are we able to utilize the fact that we just found out and my aunt being ill as a reason.

[Boiler 45,581]

1 hour ago, SalmaH said:

It seems the Sought to Acquire is the issue. We've just come to find out we even had an approved visa pending out there for us. Are we able to overturn or appeal this decision? Are we able to utilize the fact that we just found out and my aunt being ill as a reason.

I would want to check the exact regulations but I have never come across aunt being ill etc as a reason in anything.

[Aluvaboy 66]

5 hours ago, SalmaH said:

It seems the Sought to Acquire is the issue. We've just come to find out we even had an approved visa pending out there for us. Are we able to overturn or appeal this decision? Are we able to utilize the fact that we just found out and my aunt being ill as a reason.

Why can’t the Dad and two younger children immigrate first. Then dad files as an LPR for the older two children under F2B category. The downside is the older children will have to remain unmarried for few years. 

[Boiler 45,581]

3 minutes ago, Aluvaboy said:

Why can’t the Dad and two younger children immigrate first. Then dad files as an LPR for the older two children under F2B category. The downside is the older children will have to remain unmarried for few years. 

I expect that  is what will happen except it will take longer than a few years.

[SalmaH 0]

27 minutes ago, Aluvaboy said:

Why can’t the Dad and two younger children immigrate first. Then dad files as an LPR for the older two children under F2B category. The downside is the older children will have to remain unmarried for few years. 

 

19 minutes ago, Boiler said:

I expect that  is what will happen except it will take longer than a few years.

Yeah you're right. It would be more than a few years. F2A is currently 5 years and F2B Is 8 years. I'm waiting to hear back from NVC as they stated that the only way it can be overturned is if there were extraordinary circumstances. After some google research I found that some examples of extraordinary circumstances include a serious illness or disability of the child, death or incapacity of a child’s immediate family member or legal representative, or if the USCIS rejects a timely filed application for adjustment of status. https://www.murthy.com/2023/09/14/uscis-to-consider-cspa-age-calculation-policy-change-as-extraordinary-circumstance/#:~:text=CSPA's Sought-to-Acquire Requirement&text=Examples of extraordinary circumstances include,application for adjustment of status.