Aging out

[Susie]

Hi

The Child status protection act was passed into law on 6th Aug 2002.

This law is very complex, badly written , confusing to most and does not protect all children from ageing out and being separated from their familes.

I am not an attorney but have done quite a lot of reading up on this law. Please feel free to post questions here

Regards Sue

[OldinWV]

Basically, the CSPA only covers "immigrant" petitions, beneficiaries of an I-130or an I-140. That in itself is extremely unfortunate for "non-immigrant" visa holders that are eligible to adjust status.

We found that the USCIS are finding many "non-immigrant" petitions deniable based on a "memo" by Johnny Williams in February of 2003. (Bear in mind this is merely an advisory memo, not law). In this memo Mr. Williams, Acting Director of Operations at the time, states that K-2's cannot benefit from the protection of the CSPA. Unfortunately, he does not say why. This has caused major confusion within the USCIS itself. They, therefore, just state as policy that K-2's are not protected from "age-out". But.............is there an argument that the reason Mr. Williams says they are not protected by the CSPA is because at the time of adjustment, so long as they have met all the requirements of entry, they don't actually need it?

It doesn't say ANYWHERE in the INA or the CFR that K-2 visa holders have to be under 21 at the time of adjustment. It merely says they have to be "minor children" (and the definition of that is now being debated) at the time they ENTER the US, that they must remain unmarried and that the K-1 visa holder marries the original petitioner within 90 days. No mention of being under 21 at the time of adjustment is made at all.

Applications for AOS under other visas specifically terminate at the age of 21 and it clearly states such in the INA. Therefore, that is what the CSPA was there to assist with.

It is also worth mentioning that there have been two cases (Padash and Akhtar) where the 9th Circuit Court of Appeals overturned the V-visa (a non-immigrant visa for immediate relatives of LPR's) "age out" restriction. This was in 2004.

Various internal memo's and cables also state that the CSPA should be interpreted "broadly", as per the instruction of the 9th Circuit Court of Appeals in the Akhtar case, stating that it was Congress' intent to re-unite families. It further rules that "where doubts are to be resolved in the favor of the alien".

It has been a long and hard struggle for us, so far, to get the USCIS to apply any of the above in our case, although it most definitely warrants it since it was THEIR fault that my son "aged-out" (if indeed he did) due to the time it took for them to schedule his AOS interview - ten months! If they had expedited his case, as they are supposed to under their own Standard Operating Procedures, we would not even be in this position now.

Good luck to all those that are struggling to be re-united with their children or trying to stop their children from being unfairly deported from the US.

[Susie]

Hi

Yes, there are many children still separated from their families

Even though the CSPA goes some way to help and (if passed) the dream act will help some children not all are or covered.

A lot depends on available visa numbers, backlogs, retrogression etc.,

Eventually we will have on line petitons thay we can e-mail our repective Senators, congressmen/women

Once we increase in memebrship we will be contacting all sorts of influential people !!:)

[jennaamer]

OK
You offered to aswer questions so here goes . . .
My father a USC is petitioning his brother (F4). He has 2 sons who would be hoping to come along as derivatives.
Priority Date is June 94 became current in Feb2006. Oldest son turned 21 May 5th 2006. Petition was pending for 6 weeks.

Interview is set overseas for the 7th of October (next week).

Is the son protected by CSPA?
I have seen the calculations done 2 way. some take the pending time at the time that the visa is available (after background, fingerprint . . ) and others at the time the priority date becomes current.

Also, they are doing consular processing will the interviewer automatically apply CSPA or does my uncle have to ask for it?
Thanks

[Susie]

OK
You offered to aswer questions so here goes . . .
My father a USC is petitioning his brother (F4). He has 2 sons who would be hoping to come along as derivatives.
Priority Date is June 94 became current in Feb2006. Oldest son turned 21 May 5th 2006. Petition was pending for 6 weeks.

Interview is set overseas for the 7th of October (next week).

Is the son protected by CSPA?
I have seen the calculations done 2 way. some take the pending time at the time that the visa is available (after background, fingerprint . . ) and others at the time the priority date becomes current.

Also, they are doing consular processing will the interviewer automatically apply CSPA or does my uncle have to ask for it?
Thanks

Hello and :welcome:

Thanks for joining and posting

The CSPA is so confusing, even immigration attornies interpret the act differently. The CSPA is also badly written and needs a leglaslative fix as not all children are protected as the law intended.

My sons CSPA case is a beneficiary of employment based and your case is different as it is a family based application

I will look into your situation and get back to you as soon as able but this is only my opinion as I am not an attorney, just a mom who has done a lot of research on this act and others

To help me further Please reply

.1 What is the country of birth for the USC BROTHER and his child ?

2. What was the receipt date, notice date and approval date for his dad's I130?

4. When did visa numbers become available

5. What is the date of birth for the child who may age out?

6. What forms (if any) have been filed for the family

[jennaamer]

Thank you for responding. At this point I will take any opinion. I have read your story on khannas websit and linked here using your link.
ok here goes

1-The birth country of the petitioner is Jordan is is a USC. He is petitioning his brother also from jordan. The brother has a son and a daughter that are derivatives on the petition. One of the is over 21. Also from Jordan

2- Hmm approval date is June 94 petition was only pending for 6 weeks

3- Visa number became available in Feb 2006

4- He turned 21 May 5th 2006 born in 85

5- We have filled out all the forms that have been sent to us last of which was the DS 230

They are in jordan and will have an interview at the Consular office next week. We are unsure if the officer will know to apply CSPA and what the stats are for cases from jordan.
Thank you for your time!!!!!!

[Susie]

Hi

I am meeting with my attorney tomorrow and will run this by him.


This is my initial thoughts, if I understand your senario correctly then your son should be protected under CSPA and should be fine. Your son was under 21 years when visa number became available and you filed DS230 for son before he was 21 years, correct?

However, I would like to add the the immigration officers do not fully understand this new law themselves so they may ask for an advisory opinion within the department of state.

All I can say is my own son should have been protected under CSPA, according to my understanding of the employment based minor child in a follow to join case. I have sought at least 8 immigration attoneys opinion and all say son is protected.

That being said the consulate asked for an advisory opinion and was denied. I have no choice by to challenge in court. To complecate matters, my husband was the petitioner for my son, husband was diagnosed terminal on 4th May 06 and died 13th May 06

I had beed advised that as petitioner died , case died with husband. But the USCI actually told me to sue on husband and sons behalf. If we win this will help so many other children who were told they aged out, and will then be able to benefit

For your info

On Wednesday 4th Oct 2006 at 5-6pm EST my immigration attorney will be on this site to answer questions. In the Chat room

[Susie]

Hi

Are both children NOW over 21years? What is the date of birth of the other child?

[Susie]

Hi

I calculate the child DOB 5th May 1985


Age for CSPA purposes =

1. DOB = 5th May 1985

2. Petiton filed (say 5th April 1994)

3. Petition approved ( June 1994 )

4. Length of time petition pending = 6 weeks

5. Date petiton became current = Feb 2006

6. Date visa became available =Feb 2006

7 Age of alien on date visa became available (# 6 minus #1 ) = 20 years and 9 months

8 Age for CSPA purposes : Age at time visa became available minus length of time petitoin pending (#7 minus #4)



So for CSPA age

20years and 9 months less time pending of 6 weeks makes age 20year and 7 and half months


I do hope I have understood your case

Please let us know how you get on

[jennaamer]

Thank you so much for your help! Yes you understood perfectly.

I am so sorry for your loss and hope that you are able to reunite with your son soon.

I just don't understand what the purpose of the law is if so so many people are denied the benefits. I have run across so many stories such as yours. In so many cases it seems like false hope. And how can so many individuals not be trained on how to apply it?? The burden of responsibility should not be placed on the applicant otherwise we would decide our own immigration files.:eek:

I will update you on what the consular officer says next week incase it may help someone else.
Susie Thanks again so much

[jennaamer]

oh . . the other is not 21 until late next year . . .close

I hope that background checks do not negate this whole process.
I was told and understand that because they are coming from the middle east and are young men that things can get delayed. We understnad and respect this process but we hope that CSPA will still apply after the fact.
We will see what they say next week

[Susie]

Thank you so much for your help! Yes you understood perfectly.

I am so sorry for your loss and hope that you are able to reunite with your son soon.

I just don't understand what the purpose of the law is if so so many people are denied the benefits. I have run across so many stories such as yours. In so many cases it seems like false hope. And how can so many individuals not be trained on how to apply it?? The burden of responsibility should not be placed on the applicant otherwise we would decide our own immigration files.:eek:

I will update you on what the consular officer says next week incase it may help someone else.
Susie Thanks again so much


Hi

Thank you for your kind comments.

You are coorect when you say so many children are loosing the benefit of this new act

There are so many factors to take into account. Must have filed before 21 years, visa number must be current, must file an immigrant petition within one year.

As I said, the immigration officers and immigration attornies scratch their heads on the way to interpret this law

I have not choice but to challenge in court not only for my sons benefit but if sucessful, this should open the door to so many other children who were also told they aged out

Please pass the word around about our site and aims as we as a large hope to be able to petition to either ammend various laws or help introduce new ones

There are many the invest a substaintial sum of money into the USA in a business. They employ many USC, LPR pay their taxes and good honest hard working people.

They come here on an E visa. There is no provision for their children to obtain LPR status. Once they reach 21 years they have to find an alternative way to remain. Most attend college or University but other children are not bright enough or parents rich enough for this to be an option.

I beleive these children should have the right to apply to become a LPR subject to good moral character. Once they have been a LPR for five years, they inturn would then be able to petiton for their parents to become a LPR

Their parents would then be able to at least retire in dignity, again subject to good moral character.


I am hoping that enough people join this site who have problems with the Child Status Protection act.

Then we may be able to file a class action law suit for ammendments !

[Susie]

Hi

If the CSPA applies then the childs age is locked in, so even if the rest of the processing time took 2 more years he would still not age out

I ran your case by my attoney and the good news is he agrees with me that son should be protected under CSPA

Now, lets all keep our fingers crossed to see if the consulate agrees. Please let us know how the interview goes

[j0emV]

Here's my situation, my father's I-140 petition was approved in February 2003 and he finally adjusted status in August 2005. I had no idea about the CSPA until last month so I luck out of immediately immigrating with him as a derivative. That I understand. What I figured I could do was have my employer file an EB3 I-140 on my behalf and argue for the retention of his original EB3 based priority date of April 30, 2001.

I had a consultation with a lawyer this morning who seems to think that I will be automatically converted to an F2B petition based on some AILA readings we looked at during the session but he'd never really looked at the CSPA and retention of priority dates in regards to an employment based petition until I got there. My thinking is that where they say converted to the "appropriate category", could be applied to me say if I had an EB3 I-140 filed on my behalf. That would make the EB3 petition an "appropriate category", appropriate meaning suitable, whereas had there been no employment petition filed, then his employment petition would automatically be converted to an F2B on my behalf. All the decisions i've seen have all been family based petition that have been granted priority date retention and those are easy because they're just moving along the same underlying category. The reasoning why they do this is because those are the only categories available to the aliens at the time of filing. But my fathers petition was indeed an employment based petition so i'm thinking what would be the case when I have an I-140 submitted for me arguing for the retention of his original priority date (which lies in the same preference category)? It wouldnt make sense that they would still convert it to an F2B petition when that wouldnt do me any good. If I were allowed to retain his priority date for my I-140 filing, then a visa number would be immediately available to me and that is the inherent reasoning for enacting the CSPA ammendments because I aged out due to no fault of my own.

So basically I want to know what everyone else thinks? Should I consult another attorney? This one seems to be apprehensive and expensive as well. I really cant afford all this but I feel that I have a good case so I want to make it happen and need the support of a good attorney.

[Susie]

Hi

It seems your father was the benficiary of employment based green card, correct?

In order for me to understand your case please answer

1. What is your date of birth?

2. What was the receipt date of your fathers I 140 and what was the approval date?

4. You say that your fathers I 140 was approved in Feb 2003 so did your father or yourself file any forms for you between Feb 2003 and Feb 2004 ?

4. Were you in home country and intend to follow to join family or were you living in the USA at time of fathers I 140 approval ?

5. What is your fathers and your country of birth ?

6. Have you been informed by VO that you have aged out? or received any letter from the USCIS to say you have aged out?

Please note I am not an attorney, I am just a mom who has read up on CSPA indepth.

I will recommend mine if you want details send me a pm

My attorney says if we get enough, age out children together we may be able to file a class action against USCIS/DOS ! The more peole coming forward the cheaper the class action will become !!!

Not many attorneys or immigration officers fully understand this new law. The CSPA is badly written and needs leglaslative fix.

We at expatsvoice hope to redress the shortfalls in this act and implement protecting for all children including children of E visa holders and children from countries where visa nummbers are in short supply

[j0emV]

Yes, my father was the primary beneficiary of an EB3 I-140 filed on his behalf by his employer. His labour certification was filed April 30, 2001.

My DOB is July 8, 1981
His I-140 receipt date is May 29, 2002 and approved on February 20, 2003.

We did nothing that I can remember between Feb 2003 and Feb 2004 because we were unaware on the CSPA benefits. My father just let his attorneys handle everything so he wasnt keeping up on developments.

At the time of his approval, I was still living in the Bahamas while he was already in the states. I moved to the states on an F-1 visa in January 2003.

We are both citizens of the Bahamas.

No, I havent taken any action yet because i'm not sure which route to take. I dont want to have him submit an I-130 for me because that would definitely port his priority date into a family-based petition. I cant submit an I-485 arguing to adjust status as a derivative since I did nothing between 2003 and 2004. I could spend $3500 on perm processing with an attorney to possibly be told that I can not retain his priority date on my own EB3 I-140 petition. I'm willing to take that risk even though its expensive. I still feel that the appropriate category in my situation would be the one for which i'm trying to apply the retained priority date to. There would be no need to convert my derivative EB3 petition to an F2B if I have a pending I-140 filed on my behalf that the retained priority date would make a visa current for me under.

Sending you a PM for the attorney info.

Edited to add: The only thing I can remember that I did do between 2003 and 2004 was entering my submission into the DV lottery. I've been doing that every year for the past 3-4 years, including this year as well. I dont know if that could be construed as criteria under "sought to acquire" lpr status within a year of visa availabilty. I guess cuz it doesnt say how, but that the alien must do some action that could be argued but I doubt it would be of any help.

Thanks for all the help!

[Susie]

Hi

Sorry I need to know

Your dad has adjusted status in Aug 05 so

What is the receipt date for your fathers I 485 ? what is the prority date ? and what was the approval date?

You say you were in the Bahamas at the time the I 140 was approved, correct?

Where were you living at the time your father filed for his Own I 485 ? In USA or home country ? or elsewhere

Also did your father have an immigration attorney at time of filing I 140 or
I 485? There is an important reason why I ask for this information and will explain later


Are there any other family members, mother, brother or sisters? and if so where are they and what status ?

I think you can now understand why, immigration attorneys, immigration offiicers the adviosry opinions section of the Dept of State have a hard time geting their heads around the CSPA and how to interpret

Please bear with me, I do work full time and will need to read up and get back to you asap

I will answer your pm tomorrow

[Susie]

What I figured I could do was have my employer file an EB3 I-140 on my behalf


Ref your quote as above

If your employer was willing , he could concurrenlty file I 140 and I 485 for you. I the I 140 was denied, this would automaticaly deny the I 485.



This would be entirely separate of the CSPA, which I am still looking into

[j0emV]

The receipt date for his I-485 was April 14, 2003, priority date was April 30, 2001 and approval date was August 29, 2005.

I was in the Bahamas most of the time the I-140 was pending but on January 2, 2003 I moved to the states on an F-1 and then his I-140 was approved February 20, 2003.

At the time his I-485 was approved I was still in the states, I had just graduated school July 30, 2005 and he was approved on August 29, 2005.

Yes he did have an immigration attorney at throughout his entire application process. They handled his labour certification, I-140 and I-485 applications for him because he really didnt understand the process. I have 2 brothers and 3 sisters.

Yes, there are others. His current wife adjusted status with him BUT i'm the only child that could possibly take advantage of the CSPA. All my siblings are either too old and missed out and I have a younger sister who was born in the states so she wouldnt need it. I'm the only one at the right age who could possibly benefit. One of my brothers lives in the states with my dad actually but he's 27, the other lives in the Bahamas and is 36. My youngest sister is 20 and lives in the states with my dad as well, then I have a 40 year old sister that lives in the Bahamas and a 36 year old sister that lives in the states as well (Florida). My father currently resides in Florida but I live in Chicago. I went to school in Atlanta.

From speaking with the attorney yesterday, he told me I could only file the I-485 concurrently with the I-140 if a visa number was currently available to me. The EB3 category is still retrogressed to 2002 so I would have a 4 year wait depending. But if I were allowed to retain my fathers priority date for my own I-140 then a visa number would be immediately available to me as his priority date is April 30, 2001.

I work full time too so I completely understand how hard it is to maintain that while trying to understand the complexities of immigration law when you're not even a lawyer. Everytime I see a lawyer I bring up things that they've never heard of or even thought of so that isnt very encouraging. Thanks again for all your help!

[Susie]

Hello

Pakiboy post this on another thread but thought is would be useful to post here also



Finally, BIA has issued a decision on case which involved 203(h)(3) involving automatic conversion and priority date retention provision.

Here are some cool links stating that.

www.ailf.org/lac/admin_interpretation_90606.pdf
http://www.cyrusmehta.com/news_cyrus.asp?news_id=1379
http://www.shusterman.com/toc-gc.html#2C
http://www.shusterman.com/siu.html






Still reading up on your case JOemv and will reply over the weekend

[Susie]

Yes, my father was the primary beneficiary of an EB3 I-140 filed on his behalf by his employer. His labour certification was filed April 30, 2001.

My DOB is July 8, 1981
His I-140 receipt date is May 29, 2002 and approved on February 20, 2003.

We did nothing that I can remember between Feb 2003 and Feb 2004 because we were unaware on the CSPA benefits. My father just let his attorneys handle everything so he wasnt keeping up on developments.

At the time of his approval, I was still living in the Bahamas while he was already in the states. I moved to the states on an F-1 visa in January 2003.

We are both citizens of the Bahamas.

No, I havent taken any action yet because i'm not sure which route to take. I dont want to have him submit an I-130 for me because that would definitely port his priority date into a family-based petition. I cant submit an I-485 arguing to adjust status as a derivative since I did nothing between 2003 and 2004. I could spend $3500 on perm processing with an attorney to possibly be told that I can not retain his priority date on my own EB3 I-140 petition. I'm willing to take that risk even though its expensive. I still feel that the appropriate category in my situation would be the one for which i'm trying to apply the retained priority date to. There would be no need to convert my derivative EB3 petition to an F2B if I have a pending I-140 filed on my behalf that the retained priority date would make a visa current for me under.

Sending you a PM for the attorney info.

Edited to add: The only thing I can remember that I did do between 2003 and 2004 was entering my submission into the DV lottery. I've been doing that every year for the past 3-4 years, including this year as well. I dont know if that could be construed as criteria under "sought to acquire" lpr status within a year of visa availabilty. I guess cuz it doesnt say how, but that the alien must do some action that could be argued but I doubt it would be of any help.

Thanks for all the help!


Hi

I am nearly ready to reply but I need to know at what date did a visa become available ??



There are a couple of stages in CSPA

The first is to work out if CSPA made be applied, the second stage is if able to APPLY the CSPA, are you protected


So, it seems your were the minor child of employment based case, Section 3, correct?


This is what I have so far


1. Your DOB 8th JUly 1981

2. Petition filed 29th May 2002

3. Petition approved 29th Feb 2003 (What is exact date) I put 29th for now

4. Length of time pending 9 months

5. Date petiton became current Aug 2005 (What is the exact date)

6. Date visa became available

7. Age of alien on date visa became available (#6-1#) = age for cspa purpose


I will amend this post later,







For your info

ADLAC NO 3# (PLease research and read )

AT NO 2. STATES

Under sec 424 of patriot act , an alien whose 21st birthday occured after Sept 2001 and is the beneficiary of a petiton filed ON OR BEFORE Sept 11th 2001, will be considered a #CHILD#


ETC ETC


I note your fathers I 140 was filed on 30th April 2001 , but receipt date is 29th May 2002.


So I am confused as to why the dates differ ? and stuck until you clarify

If you perfer, send me a pm with your contact details and I will call you when I get a minute

[j0emV]

Yes, at the time of his application I was a derivative minor child of an EB3 I-140 petition.

Because his petition was EB3, a labour certification is required. His labour certification was filed April 30, 2001 and that is considered the priority date.

His I-140 was submitted May 29, 2002 and approved February 20, 2003. The I-140 petition from my understanding became current upon approval on February 20, 2003 as at that time all employment-based preference categories were current. Why it took so long for them to approve is I-485 I have no idea.

His I-485 was submitted April 14, 2003 and approved on August 29, 2005. EB3 was unavailable starting in July 2005 and retrogressed until March 2006 when they began processing priority dates May 1, 2001. So if I were to try and apply for adjustment of status anytime between July 2005 and March 2006, the application would have been denied as a visa was not currently available to me at that time. That's still outside of the 1 year "sought to acquire LPR status" window of February 2003 - February 2004.

[Susie]

Hi

There are a couple of stages in CSPA

The first is to work out if CSPA made be applied, the second stage is if able to APPLY the CSPA, are you protected


So, it seems your were the minor child of employment based case, Section 3, correct?


1. Your DOB 8th JUly 1981

2. Petition filed 29th May 2002

3. Petition approved 20th Feb 2003

4. Length of time pending 8 months 3 weeks

5. Date petiton became current 20th Feb 2003

6. Date visa became available 20th Feb 2003

7. Age of alien on date visa became available (#6-1#) = 22 years 7 months and half months


8 Age for cspa purpose 21 years 7 and half months, less time petition pending of 8 months 3 weeks


So age for CSPA is 20 years 10 months and 3 weeks


So for step one of CSPA your age is under 21years !

The second step is you/your father should have filed immigrant petition within one year of I 140 approval

If you were in the USA at the time your father filed his I 485, he should have filed and I 485 for you also

If you were abroad at time your father filed I 485 for himself, then he should have filed an I 824 for your to follow to join


All is not lost though !

Please read up on the two CSPA cases, The Kym case and the Pradash case and could you post research here to assist others in the future

One of these (cannot remember which one) did NOT file immigrant petition within one year of the fathers I 140

The case was challenged in court and alien won !


The judge ruled that #As father instructed immigration attorney to act on famiies behalf # then the alien/s sought to accquire immigrant status


It does look as if you would have to go to court to challenge and hopefully get CSPA protection.

Please note, my comments are just in my view, I am not an attorney and I always ask people seek proper legal advise.

[Susie]

Hi

This is ADLAC # 2


Child Status Protection Act: ALDAC 2


R 170109Z JAN 03
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KHARTOUM
AMEMBASSY KABUL
AMEMBASSY CARACAS
UNCLAS STATE 015049


VISAS - INFORM CONSULS

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: CHILD STATUS PROTECTION ACT: ALDAC #2

REF: (A) 02 STATE 163054 (B) 02 STATE 123775

-------
SUMMARY
-------

1. This cable reiterates/clarifies the main points of the
Child Status Protection Act of 2000 ("CSPA"), limits the
mandatory advisory opinion requirement to a narrow class
of cases, and announces revisions to certain important
aspects of the preliminary guidance set forth in reftel.

2. Posts should note that the CSPA requires a three-step
process:
-- First, determine whether the CSPA applies. Under the
revised guidance, the CSPA may apply to any case involving
a petition approved on or after August 6, 2002. The CSPA
may also apply to certain cases involving petitions
approved before August 6, 2002, but only if either:
(a) the alien aged out on or after August 6, 2002, or
(b) the alien aged out before that date but had applied
for a visa before aging out and was refused under 221(g).
If the petition was approved before August 6, 2002 and the
alien aged out before that date and failed to apply before
aging out (or applied after aging out and was denied on
that basis), then the CSPA would not apply. If the alien
applied before August 6, 2002 and was refused on any
ground other than 221(g), the case must be submitted for
an advisory opinion.
-- Second, if the CSPA applies to the case, then
calculate the alien''s age under the CSPA.
-- Third, in Section 3 (preference and DV) cases, verify
that the alien sought LPR status within one year of visa
availability. Under the revised guidance, this generally
means that the applicant must submit the completed DS-230,
part 1 (instead of having to file a visa application)
within one year of a visa becoming available. However, if
the principal applicant adjusted to LPR status in the U.S.
and the derivative seeks a visa to follow to join, then
the law shall be interpreted to require generally that the
principal have filed a Form I-824 for the derivative
within one year of a visa becoming available.

3. Posts should also note the following:
-- Under the revised guidance, K-4 applicants (like V
applicants) cannot benefit from the CSPA.
-- Aliens who would convert to IR-2 status from F1 as a
result of the CSPA may opt out of that conversion, which
would allow them to bring in children as F1 derivatives.
END SUMMARY

-------------------------------------
How to Approach a Potential CSPA Case
-------------------------------------

4. Ref A Aldac has generated numerous queries, and
Department has reconsidered some of its preliminary
guidance. Accordingly, Department is providing further
clarification of the CSPA rules.

5. Depending on the visa category, there are two or three
basic steps to approaching a CSPA case:
-- First, apply the rules in Section 8 of the CSPA to
determine whether the CSPA applies to the case. (See
paras 6-11 below.)
-- Second, if the CSPA applies, calculate the alien''s
age, using the age formula in either CSPA Section 2 (for
unmarried offspring of Amcit petitioners) or CSPA Section
3 (for preference and DV cases). (See paras 12-14.)
-- Third, if the case is a Section 3 (preference or DV)
case, verify that the alien has sought LPR status within
one year of visa availability. (See paras 15-25.)

-------------------------------------------
Step One: Does the CSPA Apply to the Case?
-------------------------------------------

6. The CSPA went into effect on August 6, 2002. The law
applies to immigrant visa cases initiated after that date
but has a somewhat more limited applicability to cases
that were already in progress on the day the law went into
effect. CSPA Section 8 defines which cases are covered by
the CSPA. As stated in paragraph 17 of Ref A, Section 8
provides that the CSPA applies to cases where either:
-- the petition was filed after 8-6-02; or
-- the petition was filed before 8-6-02 and was still
pending (i.e., not yet approved) on that date; or
-- the petition was approved before 8-6-02, but only if a
final determination had not been made on the beneficiary''s
application before that date.

7. Most of the cases posts are likely to see in the first
few years, at least in the family-based preference
category, are cases in the third group -- in which the
petition was approved before 8-6-02. It is important that
as a threshold matter, posts closely examine such cases to
determine whether the CSPA would even apply to the case.

8. Paragraph 17 of Ref A advised that on a preliminary
basis, Department would interpret CSPA Section 8 to mean
that beneficiaries whose petitions had been approved prior
to 8-6-02 could not benefit from the CSPA unless the
beneficiary actually filed an immigrant visa application
before 8-6-02 and no "final determination" had been made
on that application. This preliminary interpretation has
since been refined. Under the revised interpretation, if
the petition was approved before 8-6-02, then the CSPA
will not apply unless either:
(a) the alien aged out on or after 8-6-02, or
(b) the alien aged out before 8-6-02 but, prior to aging
out, had applied for an immigrant visa and was refused
under 221(g).

9. If the petition was approved before 8-6-02 and the
alien aged out before that date and either failed to apply
for a visa or applied after aging out and was refused on
that ground, then the CSPA would not apply. If the alien
applied before August 6, 2002 and was refused on some
other ground besides age-out or 221(g) grounds but that
refusal ground has been overcome/waived (such as an
overcome 212(a)(1), 212(a)(4), 212(a)(5) refusal, or a
212(a) refusal that was subsequently waived), then the
case should be submitted to CA/VO/L/A for an advisory
opinion. (If the alien was refused on a ground that has
not been overcome or waived, then the alien could not
qualify for a visa anyway, regardless of whether the
alien''s age would be under 21 under the CSPA, and
therefore there would be no need to submit an AO request
on the CSPA issue.)

10. NOTE: In determining whether an alien aged out
before or after August 6, 2002, post should keep in mind
that the special 45-day Patriot Act rules discussed in Ref
B Aldac still apply. Under those rules, if the alien is
the beneficiary of a petition filed before Sep. 11, 2001,
the alien remains eligible for child status for 45 days
after turning 21. For example, an alien who turned 21 on
August 5, 2002, but who was the beneficiary of a petition
filed before Sep. 11, 2001, would not actually age out
until 45 days after the alien''s 21st birthday, i.e., on
September 19, 2002. Therefore, even though the alien in
this example turned 21 before the CSPA went into effect on
August 6, 2002, the alien did not age out until after that
date, and therefore the CSPA would apply to that alien''s
case, regardless of whether or not the alien had filed an
immigrant visa application before August 6, 2002.

11. Posts should note that whether the alien aged out
before or after 8-6-02, and whether the alien applied for
a visa before 8-6-02, are only relevant if the petition
was approved before 8-6-02. If the petition was approved
on or after 8-6-02, then the CSPA may be applied to the
case, even if the alien aged out before 8-6-02 or even if
the alien did not apply for a visa before 8-6-02.

[Susie]

ADLAC # 2 CONTINUED


-------------------------------------------------------
Step Two: Assuming the CSPA Applies, Does the Alien''s Age
Come Out to Be Under 21, Using the CSPA Formulas?
----------------------------------------------------------

12. The following is a simplified summary of how to
calculate the alien''s age in cases where the CSPA has been
found to apply:

CSPA Section 2 Cases:

-- For IR-2/3/4: Age is determined using the age the
alien had on the date the petition was filed. (As noted
in reftel, the CSPA would very rarely be of practical use
in IR-3/-4 orphan cases.)

-- For F2 Principal Cases Where the Petitioner
Naturalizes and the Applicant Could Convert to Either IR-2
or F1: Age is determined using the age the alien had on
the date the petitioner naturalized.

-- For F3 Principal Cases Where the Applicant Divorces
and the Applicant Could Convert to Either IR-2 or F1: Age
is determined using the age the alien had on the date of
the divorce.

CSPA Section 3 Cases:

-- For Principals in F2A Cases, and For Derivatives in
Preference and DV cases: Age is determined by taking the
age of the alien on the date that a visa first became
available (i.e., the date on which the priority date
became current and the petition was approved, whichever
came later) and subtracting the time it took to adjudicate
the petition (time from petition filing to petition
approval).

-- Department recognizes that this is a somewhat
complicated formula. To assist posts in applying the
formula, a worksheet for calculating the alien''s CSPA age
in Section 3 preference cases is appended at the end of
this Aldac. (Paragraph 15 of Ref A contains the special
rules for calculating the age of derivatives in DV cases.
Posts are reminded that DV visas cannot be issued after
the end of the fiscal year, regardless of whether a
derivative might benefit from age-out protection under the
CSPA.)

13. If posts need to determine the date on which a
particular priority date first fell within the cut-off
date for purposes of determining what the alien''s age was
on the date the case became current, posts should refer to
their monthly Visa Bulletin files, or may access this
information through the CCD - go to
http://CADATA.CA.STATE.GOV, then go to the "Public" tab
and scroll down to the "IV Cutoff Dates by Visa Class" and
enter a post code and a time period. If post''s records or
this on-line site do not have the necessary information,
posts may contact CA/VO/F/I for further assistance on
historical movement of cut-off dates.

14. It is important to note that once it is determined
that CSPA applies and the alien''s age is determined, the
alien''s age does not change. The alien retains the same
age throughout the pendency of the case. (While the CSPA
may prevent the alien''s age from changing, the alien must
of course still meet the other criteria for "child"
status, including being unmarried, and therefore if the
alien marries, the alien will lose "child" status, even
though the alien''s age, for immigration purposes, may be
under 21 as a result of the CSPA.)

----------------------------------------------------
Step 3 (For Preference and DV Cases Only): Did
the Alien "Seek LPR Status" (i.e., Submit the
DS-230, Part I) Within One Year of Visa Availability?
-----------------------------------------------------

15. As noted in Ref A, preference and DV applicants
cannot benefit from the special age-out rules in the
recently enacted CSPA unless, in the words of the statute,
they have "sought to acquire the status of an alien
lawfully admitted for permanent residence" within one year
of a visa becoming available. (As explained in Ref A, a
visa number is considered to become available when the
petition has been approved and the priority date is
current, whichever comes later.)

16. Paragraph 12 of Ref A stated that for the purposes of
this rule, an applicant would be considered to have
"sought to acquire [LPR] status" on the date of the visa
application, meaning that a preference or DV applicant
could not benefit from the CSPA unless the alien filed a
visa application within one year of a visa becoming
available. However, concerns have since surfaced that
difficulties experienced by the applicant in obtaining or
adequately completing required documents or government
delays in scheduling appointments for applications may
prevent an applicant from applying for an immigrant visa
within one year of visa availability, thereby causing the
alien to be denied the benefits of CSPA age-out protection
through no fault of his/her own.

17. To address this concern, Department has reconsidered
its preliminary interpretation and has decided that, in
cases where the principal applicant''s case goes through
visa processing rather than adjustment of status, a better
interpretation would be to measure the date on which the
applicant first seeks to acquire LPR status as the date on
which the applicant submits the completed DS-230, Part I.
Therefore, if a preference or DV visa applicant submits
the DS-230, Part I within one year of visa availability,
then the applicant would be eligible for CSPA benefits,
assuming the CSPA otherwise applies to the case. (Note:
In older cases that pre-date the creation and use of the
DS-230 Part I, posts may look to predecessor versions of
or precursors to the DS-230 Part I, such as the OF-230
Part I or the old OF-179 Biographic Data Sheet for Visa
Purposes.)

18. Section 3 expressly requires that the alien seeking
CSPA benefits take the necessary steps to seek LPR status
within the one-year time frame. In cases involving
derivatives, it is not enough that the principal may have
taken the required steps within the one-year time frame --
the derivative him/herself must have taken those steps (or
the principal must have taken the required step
specifically for the derivative, acting as the
derivative''s agent). Therefore, if the applicant seeking
CSPA benefits is a derivative, then the determining factor
is the submission of a completed DS-230, Part I, that
specifically covers the derivative. The submission of a
DS-230 Part I that covers the principal will not serve to
meet the requirement.

19. Similarly, derivative applicants seeking to follow to
join a principal who was already issued a visa are
required to establish that a DS-230 Part I was sent
specifically for them (not for the principal) within one
year of visa availability. In cases where no record of
the case exists at post, it would be the applicant''s
burden to establish that this requirement was satisfied.
The principal alien''s A file at BCIS may contain some
documentation relevant to this issue (e.g., an OF-169
signed by the principal applicant but expressly listing
the derivative''s name as one of the family members
intending to immigrate). It would be the alien''s burden
to present such evidence.

20. If it has been established that a DS-230 Part I was
specifically submitted for an alien seeking CSPA benefits,
posts must then verify that the Form was submitted within
one year of visa availability. To determine the date on
which the alien submitted Part I of the DS-230, post may
normally refer to the "OF-230 P1 Received" date recorded
in the IV system. If a DS-230 Part I was in fact
submitted for the alien seeking LPR benefits and the
submission date in the IV system is less than a year after
visa availability, then the alien normally will have
satisfied the requirements of Section 3 and may benefit
from the CSPA, absent evidence that the response date
related only to the principal and that the DS-230 Part I
for the derivative was submitted at some later time
subsequent to the principal''s response to Packet III. On
the other hand, if the DS-230 Part I response date is more
than a year after visa availability, then the alien
normally would not be eligible for Section 3 CSPA
benefits, unless the alien can show that he/she actually
made the submission at an earlier date that was within one
year of visa availability.

21. Since Packet III (now referred to as the Instruction
Package for Immigrant Visa Applicants) is sent out when
the priority date falls within the qualifying date, there
will be cases when the applicant actually submits the DS-
230, Part I before the priority date is current, i.e.,
before a visa has even become available. Any case in
which the applicant''s DS-230, Part I is received before
the priority date is current would necessarily meet the
requirement that the alien seek LPR status within one year
of a visa number becoming available.

[Susie]

ADLAC # 2 CONTINUED

Child Status Protection Act: ALDAC 2


22. The requirement that the preference or DV applicant
submit the DS-230, Part I within one year of visa
availability shall apply only in cases where the principal
applicant was processed for a visa at a consular post
abroad. If the principal applicant adjusted status in the
U.S. and a derivative is applying for a visa abroad to
follow-to-join, then the date on which the derivative will
be considered to have sought LPR status for purposes of
satisfying CSPA Section 3 will generally be the date on
which the principal (acting as the derivative
beneficiary''s agent) filed the Form I-824 that is used to
process the derivative''s following to join application.
Therefore, in cases involving a derivative seeking to
follow to join a principal who adjusted in the U.S., the
derivative can benefit from the CSPA if the principal
filed a Form I-824 for the beneficiary within one year of
a visa becoming available (i.e., within one year of the
case becoming current or petition approval, whichever is
later). The instructions to Form I-485 (the adjustment
application) advise aliens adjusting status in the U.S.
who have derivatives abroad to file a Form I-824 for such
derivatives, and the I-485 Form indicates that that Form
I-824 can be filed simultaneously with the Form I-485
adjustment application. Therefore, the date on which the
I-824 is filed may be the same date that the principal
filed the I-485 adjustment application.

23. As there are other ways to initiate a following-to-
join case besides the filing of an I-824, it may be
possible for a derivative alien to satisfy the one-year
time limit for seeking LPR status in other ways. If posts
encounter cases involving derivatives following to join an
adjusted principal who have not had an I-824 filed on
their behalf within the required time frame but who have
taken some other concrete step to obtain LPR status for
themselves within the one year time frame, posts should
submit such cases to the Department (CA/VO/L/A) for an
advisory opinion.

24. Posts should keep in mind that the mere fact that an
alien satisfies the requirement of seeking LPR status
within one year of visa availability does not/not mean the
alien has not aged out. Rather, it simply means that the
alien is potentially eligible for CSPA treatment. Posts
must also verify that the CSPA applies to the case (see
paras 6-11 above), and, that the alien''s CSPA age
equivalent is under 21 (see paras 12-14 above).

25. Posts are also reminded that the CSPA requirement
that the alien seek LPR status within one year of a visa
becoming available applies only to preference and DV
cases. (It has little practical effect in DV cases, given
the requirement that DV cases be processed within one
fiscal year.) The requirement does not apply to IR
applicants, and therefore the date that an IR applicant
submits the DS-230, Part I, is not relevant to CSPA
applicability.

---------------------------------------------
Mandatory Advisory Opinion No Longer Required,
Except in Limited Cases
---------------------------------------------

26. Paragraph 13 of Ref A instructed posts to seek
advisory opinions from CA/VO/L/A in all cases that fall
within section 3 of the CSPA. The Department is changing
this policy. Because the guidance in this Aldac is
sufficiently detailed for posts to process these cases,
advisory opinions are no longer required in CSPA cases,
except as noted in paras 9 and 23 above. Other than in
the narrow classes of cases referred to in those
paragraphs, posts may accord CSPA benefits in any case in
which the conoff finds the alien eligible for such
benefits, according to the guidance provided above,
without the need for an advisory opinion.

27. However, if post has any questions about the
applicability of the CSPA in a particular case, Department
(CA/VO/L/A) welcomes voluntary advisory opinion requests.
Any such requests must have, at a minimum, the following
information:
-- the alien''s date of birth;
-- the immigrant visa category;
-- whether the alien is a principal or derivative;
-- whether the petitioner naturalized and if so, the date
of naturalization;
-- the alien''s marital status and, if ever married, the
dates of marriage and dates of divorces;
-- the date the petition was filed;
-- the date the petition was approved;
-- the date the priority date became current;
-- the alien''s age on the date that a visa became
available (i.e., age on date of petition approval or on
date priority date became current, whichever is later);
-- the date the alien submitted the DS-230 Part I (or, in
following to join adjustment cases, the date the adjusting
principal filed the I-824);
-- the date(s) the principal and relevant derivative alien
applied for the IV;
-- If any IV application(s) were made prior to the
effective date of the CSPA, the outcome of the prior
application(s).

-------------------------------
Correction to Example in Reftel
-------------------------------

28. Department would also like to clarify some confusion
engendered by a typographical error in an example provided
in the portion of Ref A relating to Section 6 of the CSPA,
which addresses the problem currently encountered by
Filipino applicants whose parents naturalize. Automatic
conversion from F2B to F1 status can disadvantage an
applicant in these circumstances due to the less favorable
cut-off dates for Filipino F1s. To illustrate how
automatic conversion usually benefits an applicant whose
parent naturalizes, paragraph 20 of reftel described a
case involving a "14 year-old" unmarried French applicant.
This, however, was a typographical error. The age that
was supposed to be used in the example was 24, not 14.
Section 6 would have no relevance to a case involving a 14
year old, since a 14 year old whose parent naturalizes
would convert from F2A to IR-2, not F2B to F1, and the
child''s case would be current as a result of the
conversion.

--------------------------------------------------------
Can an Alien Opt Out of Section 2 CSPA Age-Out Benefits?
--------------------------------------------------------

29. Some posts have noted that an IR-2 who aged out and
converted to F1 and who now benefits from the special age
out rules in Section 2 of the CSPA may prefer not to
convert back to IR-2 category. Specifically, F1 aliens
with children may prefer to remain F1s so that their
children can accompany them to the U.S. as F1 derivatives.
That would not be possible if the alien''s case were
converted to IR-2 because IR-2s cannot have derivatives.

30. Although there is an opt out provision in Section 6
of the CSPA for F2Bs who do not wish to convert to F1 upon
the petitioner''s naturalization, there is no express opt
out provision in the CSPA for aliens who would prefer to
remain F1s rather than converting to IR-2 under the
special age-out protection rules in CSPA Section 2.
However, in Department''s view, such aliens may still be
processed as F1s, but only if the alien''s priority date
falls within the F1 cut-off date.

[Susie]

ADLAC # 2 CONT


Child Status Protection Act: ALDAC 2



30. Although there is an opt out provision in Section 6
of the CSPA for F2Bs who do not wish to convert to F1 upon
the petitioner''s naturalization, there is no express opt
out provision in the CSPA for aliens who would prefer to
remain F1s rather than converting to IR-2 under the
special age-out protection rules in CSPA Section 2.
However, in Department''s view, such aliens may still be
processed as F1s, but only if the alien''s priority date
falls within the F1 cut-off date.

------------------------------------
CSPA Does Not Apply to Vs or to K-4s
------------------------------------

31. Department has reconsidered the guidance in reftel
and has concluded that the CSPA would not, repeat, not
apply to K-4 applicants. Although it may make practical
sense to allow such aliens to benefit if an IR-2 petition
has been filed on their behalf, under the literal language
of the statute the CSPA applies only to the immigrant visa
categories specified in the statute and the law does not
contain a provision allowing for application to K-4 or
other nonimmigrant visa cases. Therefore, in Department''s
view, we do not have the discretion to apply the law to K-
4s, absent a legislative amendment. As indicated in
reftel, the CSPA also does not apply to V visa applicants,
even though they are also beneficiaries of an F2A
petition. However, both Vs and K-4s can benefit from the
CSPA at the time they ultimately apply for IR-2 or F2
immigrant visas.

------------
Cases at NVC
------------

32. As noted in reftel, Department is working with NVC to
identify cases at NVC that appear to meet the criteria for
CSPA and which now should be forwarded to post as F1 cases
that have converted back to IR-2 or F2B cases that have
converted back to F2A. Per reftel, posts should make a
similar effort to identify cases that can benefit from the
CSPA, such as cases where derivatives were recently denied
or removed from cases as over-aged or petitions that had
been converted to noncurrent F1 and F2B cases which may
now be converted back to IR-2 or F2A cases again.

-------------------------------------------------------
Sample Worksheet for Calculating Age in Section 3 Cases
-------------------------------------------------------

33. The following is a sample worksheet that may be
useful in calculating age in Section 3 cases (for
principals in F2A cases, and for derivatives in all
family-based and employment-based preference categories):

1. Alien''s Date of Birth:
2. Date Petition Filed:
3. Date Petition Approved:
4. Length of Time Petition Pending (#3 minus #2):
5. Date Petition Became Current:
6. Date Visa Became Available (Later of #3 or #5):
7. Age of Alien on Date Visa Became Available
(#6 minus #1):
8. Age for CSPA purpose: Age at time Visa Became
Available minus Length of Time Petition Pending
(#7 minus #4):

CAUTION: Only apply the Age in #8 if both:
1. The alien returned the completed DS-230, Part I,
within one year of visa availability (or an I-824 was
filed on the alien''s behalf within that time frame, in
cases involving a derivative following to join a principal
who adjusted in the U.S.);
and/and
2. Either:
(a) the petition was not yet approved on Aug 6, 2002, or
(b) the petition was approved before that date but the
alien seeking CSPA benefits either (i) aged out on or
after that date or (ii) aged out before that date but,
before aging out, applied for an immigrant visa and was
refused under 221(g).

34. Minimize considered.
POWELL

[jennaamer]

Finally they went to the interview
My uncle and his 2 sons were given a letter stating the are ineligible to receive a visa under section 212 (a)(4) because of the affidavit of support. It is odd because my father a usc has hmm maybe 15 times the required income in cash and real estate assets as well as all the document to prove it also he sent in his tax returns which show that he meets 125% of the poverty line for my uncle and the derivatives his 2 sons plus his current household (an attorney prepared the document). We have a joint sponsor but did not think that we would need them based on the attornies advice. Grrr!!! We did not think this would be the issue.

Anyway, We are gonna send in another affidavit with an additional joint sponsor.

OK here is the question one of the boys is over 21 does this mean that the only issue that came up was the I864 are we in the clear for the son being over 21? Have background cheks and name checks been completed? Or is this only the 1st step? Is there a possibility that these can become an issue. My uncle was so nervous he did very little asking questions.

[Susie]

Finally they went to the interview
My uncle and his 2 sons were given a letter stating the are ineligible to receive a visa under section 212 (a)(4) because of the affidavit of support. It is odd because my father a usc has hmm maybe 15 times the required income in cash and real estate assets as well as all the document to prove it also he sent in his tax returns which show that he meets 125% of the poverty line for my uncle and the derivatives his 2 sons plus his current household (an attorney prepared the document). We have a joint sponsor but did not think that we would need them based on the attornies advice. Grrr!!! We did not think this would be the issue.

Anyway, We are gonna send in another affidavit with an additional joint sponsor.

OK here is the question one of the boys is over 21 does this mean that the only issue that came up was the I864 are we in the clear for the son being over 21? Have background cheks and name checks been completed? Or is this only the 1st step? Is there a possibility that these can become an issue. My uncle was so nervous he did very little asking questions.

Hi

Sorry about the referral for your uncles case.

IMHO if there was anything wrong with the over 21year old I think they would have said something at interview.

Did they have to leave all passports at consulate, or once you have further documents, do you need to book further appiontment and take passports with them or do you just send the documents and wait for the embassy to call uncle for interview?

What did consulate officer say exactly ! as to the way forward

[jennaamer]

they said once they have the documents to mail them to the embassy to be reviewed. Along with the his passport. also they asked to have original I864 from the petitioner for each of the kids
Thanks

[j0emV]

Here's an interesting detail I clipped from the CSPA that I never noticed before until tonight:

22. The requirement that the preference or DV applicant submit the DS-230, Part I within one year of visa availability shall apply only in cases where the principal applicant was processed for a visa at a consular post abroad. If the principal applicant adjusted status in the U.S. and a derivative is applying for a visa abroad to follow-to-join, then the date on which the derivative will be considered to have sought LPR status for purposes of satisfying CSPA Section 3 will generally be the date on which the principal (acting as the derivative beneficiary's agent) filed the Form I-824 that is used to process the derivative's following to join application. Therefore, in cases involving a derivative seeking to follow to join a principal who adjusted in the U.S., the derivative can benefit from the CSPA if the principal filed a Form I-824 for the beneficiary within one year of a visa becoming available (i.e., within one year of the case becoming current or petition approval, whichever is later). The instructions to Form I-485 (the adjustment application) advise aliens adjusting status in the U.S. who have derivatives abroad to file a Form I-824 for such derivatives, and the I-485 Form indicates that that Form I-824 can be filed simultaneously with the Form I-485 adjustment application. Therefore, the date on which the I-824 is filed may be the same date that the principal filed the I-485 adjustment application.

So basically, the way it all started was that my dad was supposed to return to the Bahamas for consular processing but because he overstayed and worked in the states illegally, his attorneys advised him to do adjustment of status after finding out that he was eligible for 245(i) benefits. At the time that all this was going on, I was still living in the Bahamas but then moved to the US on an F1 right before his I-140 was approved. According to this piece of the CSPA, I could argue that I was going to use consular processing and follow-to-join my father after his I-485 was approved, which was really what we thought would work. His I-485 was approved on August 29, 2005 and we tried in December 2005 to submit the I-824 but were told flat out by the USCIS that because I was over 21, it would not work. Typically, one wouldnt submit an I-824 until there's an approved I-485 right?

[Susie]

[QUOTE=j0emV]Here's an interesting detail I clipped from the CSPA that I never noticed before until tonight:



So basically, the way it all started was that my dad was supposed to return to the Bahamas for consular processing but because he overstayed and worked in the states illegally, his attorneys advised him to do adjustment of status after finding out that he was eligible for 245(i) benefits. At the time that all this was going on, I was still living in the Bahamas but then moved to the US on an F1 right before his I-140 was approved. According to this piece of the CSPA, I could argue that I was going to use consular processing and follow-to-join my father after his I-485 was approved, which was really what we thought would work. His I-485 was approved on August 29, 2005 and we tried in December 2005 to submit the I-824 but were told flat out by the USCIS that because I was over 21, it would not work. Typically, one wouldnt submit an I-824 until there's an approved I-485 right?


Hi

From what I understand of your situation

Your father was able to adjust status because of the 245i life act and because illegal had to stay in the USA.

The important issue is not where your father was at time of filing his I 485 but where you were living !

If you were living in the USA at the time your father should have filied I 485 for you at the same time or within one year of your fathers I 140 approval.

Or if you were abroad he should have filed I 824 for you to follow to join. This can be filed concurrently with fathers I 485 or at separate time within one year of fathers I 140 approval


This is the reason I asked if your father had immigration attorney.


From what I have worked out, your age for cspa should be under 21years. You and or yourself should have taken steps for you to immigrate

Either the Kym or Pradash case is very simular to yours. Please try to research these cases and post here. I will also try to find the information as very relavant to you.


Even though one of these were told they aged out the judge ruled that because the alien instructed an immigration attorney then this proved intent to try to get immigration status under cspa so alien was awarded benefit even though officially aged out.

It seems the only way for you to get protection under CSPA is to go to court and quote the other simular case.

[Susie]

Hi

Your case is a prime example of why the CSPA needs leglaslative fix.

The cspa is so complex and does not protect all children and why if enough cases came get together through expats voice my attorney could maybe file a class action

The cost of a class action would benefit so many if approved and costs shared between a number of vicitms instead of individual cases

Also children of E visa should be included in CSPA and other children whos visa numbers are backlogged.

The guest worker programe does not included legal children and if passed , it should.

We must start trying to get our voices heard and need more members, not just to join but offer assistance to our commitee and do a lot of legwork

[j0emV]

its really unfair that children lose out the ability to immigrate due to no fault of their own, and then the President signs the CSPA which is still restrictive. This within one year thing is nonsense. How is it fair that there is a one year requirement for preference cases yet there's no requirement for IR cases?

My father did have an attorney throughout his entire process but I dont think he instructed them to do anything as we just assumed the I-824 had to be filed after the principal adjusts status. Yet again the CSPA is unfair in that regard as it doesnt allow room for persons that typically would file an I-824 after their I-485 is approved. I dont know what to do next but i'm hoping my argument for retention of his priority date for my own EB3 filing is heard.

The Pradash case states that the CSPA must be interpreted as expansively as possible to include as many cases as it can. The Kim case stated that she filed for adjustment of status 17 months after her fathers I-140 approval. They argued that her family retained the services of an attorney to process the application within the one year requirement. My only problem is, my dads attorneys never processed any files for me nor were they instructed to do so. We can say that he instructed his attorneys to handle the filing BUT i'm sure they would require proof of that and we have none.

[Susie]

Hi

Please remember your father is/was a consumer and instructed attorney.

The attorney should ask about all family members and therefore be aware of pending under 21years and act accordingly

I still think you have a good case to argue but if you want protection, until such times as there is a final determination of CSPA will need to go to court

The easy way out for you is for your employer to sponser you for I 140 and concurrently file I 485

But if I 140 is denied this will auotmatically deny your I 485

Your father should maybe file I 130 for you now, but this will take years for you to get green card which is terrible. Unmarried son of LPR over 21 years !

[j0emV]

Well I was gonna concurrently file the I-140/485/765/131 but I think my priority date has to be current in order to file concurrently. The reason why I want to retain my fathers priority date for my own I-140 filing is because his priority date is current under the EB3 preference category and I would have a visa number immediately available to me.

Do you think they will allow me to use my CSPA retained I-140 priority date and use it for my own I-140 filing? I havent been able to find anything referencing this yet. The CSPA says that the child would retain the original priority date of the original petition BUT it also says it would be converted to the "appropriate category". I see no need for conversion as I would already have another immigrant petition filed on my behalf, the I-140.

We started the process yesterday so once we get my perm certified, we'll just go ahead and submit the I-140 for premium processing concurrently with the I-485/I-131/I-765 and argue for the retention of his priority date for my I-485 filing.

[Grumpy]

Hi

Been reading with interest. What a hell of a complicated mess

Thought I understood but got lost along the way. All I would say is the immigration system needs a good shake up, reforms and most most of all children should be protected from ageing out however they came to live in the USA

[j0emV]

23. As there are other ways to initiate a following-to-
join case besides the filing of an I-824, it may be
possible for a derivative alien to satisfy the one-year
time limit for seeking LPR status in other ways. If posts
encounter cases involving derivatives following to join an
adjusted principal who have not had an I-824 filed on
their behalf within the required time frame but who have
taken some other concrete step to obtain LPR status for
themselves within the one year time frame, posts should
submit such cases to the Department (CA/VO/L/A) for an
advisory opinion.

I just found that bit of information while reading through the CSPA in its entirety. How else can can a derivative initiate a follow-to-join case if the principal is supposed to submit an I-824?

Like I said, while I was waiting on my fathers case, I submitted DV entries every year for the past 3-4 years. I read somewhere that DV entries are considered petitions under the INA. Could that be construed as a concrete step I took to obtain LPR status for myself? I submitted entries in 2003, 2004, 2005 and 2006. I have been digging everywhere trying to find the confirmations I printed out from those but I imagine that theres no way the KCC is gonna toss that information.

[Susie]

Hi

The minor child of beneficiary cannot file an I 824, your father should have done this as acting as your agent.

Entering into the DV imho shows that you have tried to immigrate.

The fact your father employed an immigration attorney is proof that your father had a family.

Did your father give attonrey all family members details ? If so what did he say? Surely he must have asked # What about minor children # or was he only interested in your father solely ?

Do you have a mother and if so is she protected under 245i life act?

[j0emV]

Well we first have to understand how my father did all this. He knows absolutely nothing about the process. He paid the attorneys near $10k to process this all for him. He simply answered their questions, went in, signed whatever they wanted and left. With that said, he originally was supposed to return to the Bahamas for consular processing as his I-140 approval notice shows that they sent the notice to the NBC who would then send it to the consulate.

The 245(i) cut off date was extended to April 30, 2001 shortly after he filed his I-140 petition so at the time of filing, he was not eligible and was gonna return to the Bahamas although he would have been subject to the 10 year ban as he was out of status in the states for over 20 years. I'm assuming after the cut off date was extended, and realising that his priority date was April 30, 2001, they had him then file an I-485 after the I-140 approval so that he could pay the $1000 fine and not be subject to the ban.

Whats strange is that he didnt include any of his children on the I-140 petition, only his current wife who also adjusted status with him. On his I-485 all my siblings are listed except me. I dont know how that happened but he has no idea either.

I know there was nothing I could do at that point because it was up to him to do something but there was some confusion as to how this all works at the time he filed his I-485.

My father and my mother never married, we've just remained in contact over the years as he moved to the states when I was about 2 years old. He couldnt visit because he was out of status but I could visit and did over the years. I just dont understand what it means there are other ways to initiate the follow-to-join case BESIDES filing an I-824. Well then how else could one initiate that process?

I could submit an I-485 now arguing all this and stating that I entered into the DV lottery but I dont have the confirmation printouts for those years I entered as I lost them. I didnt hold on to them because I didnt win. But i'm positive the KCC still has records of all entries, regardless if they were selected or not as that is data i'm sure they want to keep.

[j0emV]

oh wow look at all this info I just found. It appears DV entries demonstrate immigrant intent and are considered "petitions" under 9 FAM 42.33 according to CSPA Aldac #3:

(NOTE: The 45-day age-out extension does not apply to DV
2003 or later DV programs, because in such cases the DV
lottery entries (which are considered "petitions" under 9
FAM 42.33) would necessarily all have been filed after
September 11, 2001.)

and look at this tidbit:

DOS no longer shreds or destroys unselected DV applications. On Sep. 12, 2002, Rep. George Gekas (R-PA), Chairman of the House Judiciary Committee’s Subcommittee On Immigration, Border Security, and Claims announced that upon his suggestion, 10 to 13 mil DV applications will have been shared with the US law enforcement and intelligence agencies.

I knew they were keeping records of these things. I just knew there would be no way on earth, in the days of the patriot act, that the DOS would destroy all that valuable information. I'm submitting the I-485/765/131 based on the CSPA and we'll see what happens. Its worth a shot, and in the mean time we will continue with my perm certification as plan B, and DV-2008 entry as plan C.

[Susie]

Hi

Interesting information

Do you have an immigration attorney yourself? If so what is his opinion on your case?

Have you told him about our site?

[j0emV]

I dont actually. The first attorney I saw was at a non profit legal help clinic and she was very helpful. She mostly dealt with family based cases and when I decided to pursue an employment visa she referred me to another lawyer with employment experience. When she saw all the material I came in with for the consultation she asked me why do I think I need a lawyer? I already had all the right forms filled out correctly, all the supporting evidence, copies of my fathers paperwork, etc. We were pretty much on the same page about everything.

She knew of all this DV stuff before and asked if I had the confirmation page from the DV submission but I told her no. She seemed to think I had a chance and told me it was worth a shot and plead my case. I had given up hope on being able to adjust as a derivative of my fathers petition so I talked to the lawyer she referred me to about simply retaining his priority date for my own I-140 filing. He wasnt sold on that and based on the Garcia case, thought that my employment derivative case would be converted to a family based case. My argument was, there's no point in that because if I have an approved I-140 and retained an employment based priority number through my father, then why cant I apply that to my currently approved I-140? He didnt see it my way and his charges for the perm certification were way more than I could afford. I'm only a year out of college, I cant afford expensive attorneys right now.

I havent spoken with anyone else so i'm in this alone for now. I've compiled my package with all the sources, approved BIA/federal court cases, excerpts of law, age calculations, photocopies of all my documents and evidence that I did try to seek LPR status for myself through the only way I knew how, the DV program. I typed a 3 page letter explaining my case and how it would have affected me had we begun consular processing. It would have invalidated my F-1 visa and I would have been unable to attend school until his I-485 was approved. That would have been no problem had his I-485 not taken 2+ years to be finally approved. In fact, had his I-485 not taken that long, I would have done this a LONG time ago and i'm sure well within that 1 year window. They would have expected me to remain stuck at home doing nothing for 2 years.

Also, for the interview, I think i'm gonna have the first attorney I spoke with go in with me for that. I'm great at arguing on paper or in print but dont think I could argue it alone in person. I'm sending off the package tomorrow.

[GKG]

My daughter aged out in Oct 2005 and our priority date got current in March 2006 - even with the grace period and pending time of the application being subtracted - she fell short by about 2 months!!
So looks like our only hope is a accross the board application of CSPA section 3 - So if BIA has given a favorable decision in one case are they not oblidged to apply it to other similar cases also?
I had written to them last year and they replied back that the 'retention of priority date' was applicable only to the F2 category and not to F4 - but these decisions prove otherwise.
http://www.shusterman.com/toc-gc.html#2C

I am praying that there are some lawyers who will take up these cases - I am sure there are many like us where 3 out of a family of 4 get the immigration

[Susie]

My daughter aged out in Oct 2005 and our priority date got current in March 2006 - even with the grace period and pending time of the application being subtracted - she fell short by about 2 months!!
So looks like our only hope is a accross the board application of CSPA section 3 - So if BIA has given a favorable decision in one case are they not oblidged to apply it to other similar cases also?
I had written to them last year and they replied back that the 'retention of priority date' was applicable only to the F2 category and not to F4 - but these decisions prove otherwise.
http://www.shusterman.com/toc-gc.html#2C

I am praying that there are some lawyers who will take up these cases - I am sure there are many like us where 3 out of a family of 4 get the immigration


Hi

The cspa is badly written and not many attornies or immigration officer, interpret correctly.

This is why there have been and are going to be more court cases until there is a final ruling on the act or a leglaslative fix.

Mr LaVigne my immigration attorney is willing to go to court with any case that he feels he stands a very good chance to redress.

He has even said he would be willing to file a class action suit. This way say half a dozen or so people get together the cost is shared so affordable to go to court

In all the court cases so far the Judge has ruled in favour of the age out child. If you would like his details please send me a pm.

I am not an attorney but if you would like me to review details, just get back to me

[haytonmac]

we won our green cards through the lottery .But being from the Netherlands but brought up in South Africa INS have on several occassions got my sister and I mixed up and also my daughter as she shares the same first name with my mom and sister.!! big brother knows everything!,they could one time tell me where I had had my passport renewed and asked why it had moved from Johannesburg to Pretoria!! thats like 20 yrs ago .If you play the lottery please please make sure it is the correct site as there are bogus ones that look very similar to the official site ,we nearly got caught out when it came to download the change of address forms ,they are free and one site wanted to charge $50 each !when you play try see if you can play till you win its only a one time fee I think about $10 per application more but at least you only pay once.So good luck I know of someone who won first time so finger crossed.

[Susie]

Hello Haytonmac

Wow !

Can you do me a favor please? and post this under the other thread where I asked my question?

I am new to this tech so do not know how to move it for you

[Susie]

Hello GKG

Yes I agree, There are many cases where all but one child age out. A family unit is just that and should be treated as such, no compassion.

The CSPA states, # the CSPA should be used expansively.

Why should one child have to suffer, just because the sevice centres are so far backlogged.

The number of mistakes that are made are frightening, like playing God with families lives

[j0emV]

My daughter aged out in Oct 2005 and our priority date got current in March 2006 - even with the grace period and pending time of the application being subtracted - she fell short by about 2 months!!
So looks like our only hope is a accross the board application of CSPA section 3 - So if BIA has given a favorable decision in one case are they not oblidged to apply it to other similar cases also?
I had written to them last year and they replied back that the 'retention of priority date' was applicable only to the F2 category and not to F4 - but these decisions prove otherwise.
http://www.shusterman.com/toc-gc.html#2C

I am praying that there are some lawyers who will take up these cases - I am sure there are many like us where 3 out of a family of 4 get the immigration

This doesnt sound right to me. How long was your visa petition pending? When was it filed and when was it approved? If your daughter was included on a petition and she aged out during its pendancy, then the CSPA applies to her case and she has a year from the time the priority date becomes current to try to obtain LPR status for herself. Thats all if her age is calculated to be less than 21 for CSPA purposes. Maybe i'm not understanding your case correctly but if your priority date just became current in March 2006, she has until March 2007 to file her adjustment of status application (Form I-485) OR you have until March 2007 to file an I-824 for her if she resides outside the country. These applications are typically left pending for much longer than say the 5 months between her aging out in October 2005 and the priority date becoming current in March 2006.

As for an update in my case, I submitted my I-485/765/131 earlier this month and have received the receipt notices. I've also received a biometrics appointment notice scheduled for 11/2/2006 so thats first thing in the morning... We'll see what happens over the next few weeks but in the mean time i'm working with my company on my perm processing. We began the recruitment last week.

[Susie]

Hi

A good friend has sent me this info

http://www.asianjournal.com/?c=160&a=16685


Above 21 Children Allowed to Retain Original Priority Date of Parent Pursuant to CSPA
Atty. Eugene Palacios
ELISA, a married woman and mother of two kids, Mel Jr. and Ella, is the beneficiary of an I-130, Immigrant Petition for Alien Relative filed by her sister on her behalf.

When she and her husband, Mel Sr., applied for immigrant visa and migrated to the United States in March 2005, they were not able to bring Mel Jr. and Ella with them because they were both already more than 21 years old although at the time of the filing of the case in March 1982, they were still below 21 and considered to be derivative beneficiaries of the case. Thus, when Elisa entered the United States as a legal permanent resident in March 2005, she took no time and immediately filed in October 2005 an I-30, Immigrant Petition for Alien Relative on behalf of Mel Jr. and Ella.

When they heard about the Child Status Protection Act (CSPA), they consulted a famous immigration attorney as to how they could benefit from the retention of priority dates provision of said law. The famous immigration attorney told them that there is nothing he could do about their case because he had already tried in similar cases he handled before and nothing happened because the U.S. Citizenship and Immigration Services (USCIS), up to now, has not yet issued any guidelines implementing the retention of priority dates provision of the CSPA.

They went to our office for a second opinion. I explained to them that Section 3, Paragraph 3 of the CSPA introduced Section 203(h)(3) of the Immigration and Nationality Act which states that if the derivative child of a beneficiary of family-based or employment-based petitions is determined to be 21 years old or older under the CSPA when the visa number of the parent becomes available, the child shall be allowed to retain the original priority date issued upon receipt of the original family-based or employment-based petition.

I also explained to them that as the executive arm of the government tasked to implement the provisions of the CSPA, the USCIS should not be allowed to continue in its unjustified refusal or failure to implement the law through the non-issuance of the necessary rules or guidelines.

Even though the law is on their side on the retention of priority date issue, I advised them that they are generally not allowed to seek relief from the courts until they are able to exhaust all possible administrative remedies.

After explaining everything to them including our strategy in obtaining the March 1982 priority date for the new cases she filed on behalf her children, Mel Jr. and Ella, Elisa and her husband, Mel Sr., signed up with us in October 2005. After approximately 4-5 months of continuous discussion with the USCIS, Elisa and her family, through our legal representation, were able to finally obtain in February 2006 what they have been hoping for - 2 notices of approval from the USCIS of the I-130, Immigrant Petition for Alien Relative she filed on behalf of Mel Jr. and Ella bearing the March 1982 priority date.

Since her children are here in the United States, we immediately filed their adjustment of status applications. Last month, after being interviewed at the district office, the adjustment applications of Mel Jr. and Ella were approved. They are now lawful permanent residents of the United States.

Moral of the story: It always pays to hire an experienced and reliable immigration attorney to represent you in your case.

***

Attorney Eugene M. Palacios is a highly experienced immigration attorney with a successful track record in handling all types of employment-based and family-based petitions as well as PERM and naturalization applications. To schedule an appointment, please call us at (818) 476-0071 or visit us at www.palacioslawfirm.com. Our office is located at 100 North Brand Boulevard, Suite 600, Glendale, California 91203.

The above article does not, and is not intended to, constitute legal advice for a specific immigration problem and does not create an attorney-client relationship between our office and the reader; it is for informational purposes only, and reflects our law firm's opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.

[GKG]

Hi Joem, Susie

Thanks for all the replies and the moral support. To give you the complete picture:

According to the embassy here in India, she 'aged out'. Reason - she completed 21 years on Oct 24th 2005. Our application got current in March 2006. That means my daughter was 4 months over-aged. Now they calculated that she could get a grace period of only 75 days (45 days as per patriorit act + 30 days that our original application was pending) Our priority day, incidently, was Feb 19 1994.
Now my argument is that under section 3 she should automatically pass on to the next category, ie F2B, and retain the priority date of the original application, and since that category is current as of today she should be eligible to get the immigration.
Why is it that some people fight the case and get the benefit? If it is the correct interpretation, why not make it applicable to all those applications that were pending after 2002? as per the CSPA.
My daughter is a student in the US since 2002, on a student visa. I filed an immigration application for her in May 2006 - but the question still is - will she retain the priority date of the original application?
Now should we file an I-485? Susie do you think your lawyer can file on behalf of people like us - and as you said more people with the same type of proble - less charges as the cost gets shared. What should we be filing for? Adj of status under Section 3 of CSPA? Or retention of priority date ? I heard that Adj of status takes very long. Do you think that some ruling in this regard will be coming soon? It faster to get interview done in home country?

I am still very hopeful that something good will come through!!

[Susie]

Hi

Due to my recent car crash I am not well enough to take the contents of your post in as on strong painkillers and make me fuzzy

Will get back to you when feeling better

[randallemery]

So far, aging out has not been a leglislative focus for American Families United, but it can affect citizens, too, and the post of a new member of our group, has showed us just how this can happen:

http://americanfamiliesunited.com/forum/index.php?topic=151.0

I'm sure our members would be interested in anything you might do on the topic, and being able to present the fact that age-out issues affect families of citizens, might help in any efforts you take to improve the situation.

[Susie]

Hello Randall

We really must meet up to discuss further

I am still not well enough to digest indepth posts and will reply when I am a bit better

I know Oldwin well and is a member of our site. Until now she has not posted her story but feel it would benefit others that may follow and to keep in one thread all issues regarding aging out.



Sue

[Susie]

Hi Joem, Susie

Thanks for all the replies and the moral support. To give you the complete picture:

According to the embassy here in India, she 'aged out'. Reason - she completed 21 years on Oct 24th 2005. Our application got current in March 2006. That means my daughter was 4 months over-aged. Now they calculated that she could get a grace period of only 75 days (45 days as per patriorit act + 30 days that our original application was pending) Our priority day, incidently, was Feb 19 1994.
Now my argument is that under section 3 she should automatically pass on to the next category, ie F2B, and retain the priority date of the original application, and since that category is current as of today she should be eligible to get the immigration.
Why is it that some people fight the case and get the benefit? If it is the correct interpretation, why not make it applicable to all those applications that were pending after 2002? as per the CSPA.
My daughter is a student in the US since 2002, on a student visa. I filed an immigration application for her in May 2006 - but the question still is - will she retain the priority date of the original application?
Now should we file an I-485? Susie do you think your lawyer can file on behalf of people like us - and as you said more people with the same type of proble - less charges as the cost gets shared. What should we be filing for? Adj of status under Section 3 of CSPA? Or retention of priority date ? I heard that Adj of status takes very long. Do you think that some ruling in this regard will be coming soon? It faster to get interview done in home country?

I am still very hopeful that something good will come through!!

Hi

The problem is the CSPA is badly written. My previous immigration attorney is working with AILA and Stephen Fishel, (ex head of Advisory opinions dept) to re-write the statutes but this could take years

My concern is that the Dept of State could well make a final ruling on the CSPA and close the doors for appeals/court cases and why it seems cases like yours have no choice but to file a complaint (That is my atttorney's words for sueing) sooner rather than later

Please confirm how parents can to be eligible for green card

Did a USC brother/sister/mother or father sponcer parents or was the green card petiton as a result of employment?

You could argue that the intension of the CSPA was to protect all children from aging out in the future. The way it is currently written means some children who's visa numbers are not available are still aging out.

So to get protection under CSPA there must be a legislative fix

[Susie]

So far, aging out has not been a leglislative focus for American Families United, but it can affect citizens, too, and the post of a new member of our group, has showed us just how this can happen:

http://americanfamiliesunited.com/forum/index.php?topic=151.0

I'm sure our members would be interested in anything you might do on the topic, and being able to present the fact that age-out issues affect families of citizens, might help in any efforts you take to improve the situation.


Hello Randall,

I know this lady well and have had conversations with her I also know her story. This situation of aging out must be resolved. The CSPA is so badly written. I am meeting with attorney tomorrow and will ask if he could assist in writing am amendment to CSPA act to send to lawmakers etcs.

I will post her story for the benefit of others

[Susie]

This is Oldwins story


K-2 adjustment denied
« on: Yesterday at 10:15:12 AM »

--------------------------------------------------------------------------------
Myself and my daughter arrived in the US in July 2002. A week later I married my USC husband. We then went through the nightmare of dealing with the USCIS for adjustment of status. It was nightmare because the people we had to deal with at the Immigration Office were so rude, not only to me, but to my husband, when we were merely filing paperwork they required of us. We would dread going to the USCIS office, it was always stressful because they herded people like animals, they'd shout, they would answer any questions you had incorrectly, I so wanted to return home, to the UK, at that time. I hated it here.

Six months later my eldest son, who was finishing up a work contract in the UK, was able to exercise his "follow to join" rights, to be with his family here in the US.

My daughter and I gained our Legal Permanent Residency. My son, did not hear anything from the USCIS for 10 months after filing his AOS application. When he was finally called for interview the caseworker told us that he "may have aged-out" and she was going to have to look into it! We never heard from her again and she retired from the USCIS a few months later. The file sat.....and sat.....in limbo, with nobody doing anythng on it for a year.

We contacted the USCIS many times to ask what their final decision on the matter was likely to be. Nobody would answer us and, after months and months of e-mail corresondence, phone calls, congressional representatiive's inquiries, we finally had a meeting with the USCIS District Director and her Adjudications Officer. The meeting was one where they told us that they had the "Denial Notice" prepared and handed it to us across the table. My husband pointed out that the Notice had stated my son's denial for AOS was based on a section of the INA that didn't apply to K-2's! The District Director took the Denial Notice back and said that my son was denied base on the fact that he was no longer considered "a child" and for AOS from a K-2 it was a requirement. My husband asked her where was the statute or regulation that confirmed it as a requirement. She left the room with her Adjudications Officer and came back and said "It's implied". My husband asked "Where is it implied?" She then said "It's unclear".

We told her that it wasn't "unclear" in other Districts, where K-2's were granted adjustment of status after turning 21. That we knew of cases in Texas and California where kids had applied for AOS the day they turned 21 and it was granted a few months later. Why was she applying some rule, that they couldn't even show us, to our son's case?

So, with the Denial taken back by the Director, she told us that she would send this file to the Administrative Appeals Office for a "certified" decision. She said "This way, whatever Decision the AAO come up with will become USCIS "policy" and would be used to define the requirements for a K-2 to adjust status, across the entire country".

We waited another 6 months, or so, and the AAO's Decision arrived. They too, agreed with the USCIS that my son should not be granted AOS because he reached 21 prior to adjudication of his application. Section 245(d) of the INA required him to be a child at the time of his adjustment.

We, along with our attorney, had tried to point out to the USCIS District Director and the AAO that K-2's do not adjust under Section 245, they actually adjust under Section 216 as they have to become a "Conditional" Permanent Resident first. Section 216 does not use the word "child" but instead uses the phrase "son or daughter". There is no age at which you stop becoming someone's "son or daughter".

Now we are told that my son will be placed in deportation proceedings!! He has done nothing wrong. He entered this country, legally. He filed the necessary paperwork when he was 20 years old. The USCIS are telling us that he, and every other K-2 even close to turning 21, will be afforded the same decision!

This whole thing is crazy! We have been fighting to obtain adjustment of status for my son for nearly 4 years now. If my son is deported the only way we can keep this family together is for all of us to return to the UK. My daughter and I are now US citizens, so that would mean 3 USC's have to leave their country of citizenship to stay together. It is ludicrous!

If only the USCIS officials that deal with these cases, realised that we are peope - not just pieces of paper! Why do they issue K-2 visas right up to the age of 20 years and 364 days, if they are only going to turn these kids around a few months later (or years, in our case) and deport them back to their countries of origin? It makes no sense!

My son has not seen his grandparents in 4 years. He speaks to them on the phone, but they are elderly and not in the best of health now and are unable to fly to the US because of this. He cannot risk leaving the county until this mess is sorted out, either way, for fear of being kept apart from his immediate family if they refuse to allow him to re-enter.

We have searched and searched for someone to help us in this battle. Our congressperson has done nothing, our senators have done nothing and we have, so far, paid tens of thousands of dollars to try and get this situation remedied.

Had I known that the USCIS were so incompetent that they cannot apply their own laws correctly, I would never have come here. I would never have subjected my family to the stress we have been under in the past four years. I would not have had to see my son reduced from a "happy-go-lucky" guy to the depressed young man he is now. Unfortunately, we cannot turn back the clock and now we have no choice but to continue this through the Immigration Courts - something I never expected to happen.

[GKG]

Hi Sue
Sorry to know about the accident - and thanks for all the interest you are taking inspite of the ill-health.
Well, my US citizen brother filed for me (married sister) in Feb 1994. Appliocation was for me, my husband and two children aged 9 & 7years.. Our applicame was current in March 2006. By that time my daughter was 21years + 4 months. We, myself, my husband & my son got the Green cards. When the paperwork was started in May 2005, the Imm Authorities sent all papers for her and took the money etc also ( so $380 *4) but when the final interview call came it was only for the 3 of us.
Now when I wnet to USA in May 2006, I filed for my daughter on my green card - so she is in the F2b category - but the wait is 10 years. However if she can retain the priority date of the original application, as stated under Section 3 of the CSPA, she is eligible to get the GC immidiately.
Thants our whole story!!

I am sure its the same story for many many families.

[Susie]

Hi Sue
Sorry to know about the accident - and thanks for all the interest you are taking inspite of the ill-health.
Well, my US citizen brother filed for me (married sister) in Feb 1994. Appliocation was for me, my husband and two children aged 9 & 7years.. Our applicame was current in March 2006. By that time my daughter was 21years + 4 months. We, myself, my husband & my son got the Green cards. When the paperwork was started in May 2005, the Imm Authorities sent all papers for her and took the money etc also ( so $380 *4) but when the final interview call came it was only for the 3 of us.
Now when I wnet to USA in May 2006, I filed for my daughter on my green card - so she is in the F2b category - but the wait is 10 years. However if she can retain the priority date of the original application, as stated under Section 3 of the CSPA, she is eligible to get the GC immidiately.
Thants our whole story!!

I am sure its the same story for many many families.

Hi

Feeling a bit better today, thanks for caring

What does you immigration attorney say, Did he file I 130 for your child who turned 21 years if so what was the receipt date and priorty date.

Did he submit a letter of age out explaination with the I 130?

I have started a thread called Ask attorney, and would be good to post question there, one you answer above.

What, notification have you received from UCIS with regards to age out child?

It may mean you need to file a mandamus, which may or may not work

[j0emV]

its amazing that the original I-130 your brother filed on your behalf was pending for only 30 days. So the original I-130 was approved in March 1994? If you're not working with an attorney, you should submit a letter to the service center you mailed your daughters I-130 to detailing the circumstances and explaining that you would like to have the original I-130's priority date applied to this new I-130 for your daughter. You can include approved BIA decisions like the Garcia case which was very much like yours. Basically the person aged out, but the BIA allowed her to retain her original priority date and because that date was current granted her AOS.

[GKG]

Hi Joem, Sue
I am not working with an attorney. I just filled the form and submitted it and got a receipt notice. The approval notice is still pending for this new I-130 that I filed for my daughter. I checked online - Cal service centre is processing Feb 2005 I-130 forms as of now, so its a backlog of 1.5 years!!
The notice date is June 12 2006. No priority date has been given as yet, I assume thats in the Approval Notice.
So how do I write to this service centre? A registered letter?
Sue - We were told verbally that she aged out - and thats it. And what does this mean 'It may mean you need to file a mandamus, which may or may not work' ? Sorry, I am unfamiliar with this legal terminonogy. I will ask these questions in the new thread - Ask Attorny

Thanks for all the interest

[Susie]

Hi Joem, Sue
I am not working with an attorney. I just filled the form and submitted it and got a receipt notice. The approval notice is still pending for this new I-130 that I filed for my daughter. I checked online - Cal service centre is processing Feb 2005 I-130 forms as of now, so its a backlog of 1.5 years!!
The notice date is June 12 2006. No priority date has been given as yet, I assume thats in the Approval Notice.
So how do I write to this service centre? A registered letter?
Sue - We were told verbally that she aged out - and thats it. And what does this mean 'It may mean you need to file a mandamus, which may or may not work' ? Sorry, I am unfamiliar with this legal terminonogy. I will ask these questions in the new thread - Ask Attorny

Thanks for all the interest


Hi

You child has unfortuantely aged out, which is disgusting and sucks, you filed years ago as a family as should be treated as such.

The problem in your case is you must file before the child is 21 years and visa number available.

I would do the following

Book appointment with congressman, explain case, this needs to be done to raise his awareness. Take with you a simple explaination of case eg as points, NOT an indepth letter

Get congressman to send e-mail to service centre , quoting your childs I 130 receipt number and also get HIM to request a retention of priorty date, they have a special congressional e-mail address and more likely to get an answer and quicker than your letter. The service centre should reply within 30 days of congressman.

If you wish you could also send letter which is known as Certified Mail. If it were me I would just go the Senator/congressman route for now and see what happens.

Should you get nowhere then start contacting the press to explain your story, I would speak to them on your behalf if you like, just get me contact numbers of good newspapers in your area

[Susie]

Hi Joem, Sue
I am not working with an attorney. I just filled the form and submitted it and got a receipt notice. The approval notice is still pending for this new I-130 that I filed for my daughter. I checked online - Cal service centre is processing Feb 2005 I-130 forms as of now, so its a backlog of 1.5 years!!
The notice date is June 12 2006. No priority date has been given as yet, I assume thats in the Approval Notice.
So how do I write to this service centre? A registered letter?
Sue - We were told verbally that she aged out - and thats it. And what does this mean 'It may mean you need to file a mandamus, which may or may not work' ? Sorry, I am unfamiliar with this legal terminonogy. I will ask these questions in the new thread - Ask Attorny

Thanks for all the interest

Sorry forgot to add

There are many children still aging out despite the enactment of CSPA. However more an more applicants are having to go to court in order to try and convince the USCIS to award this benefit to their children.

There has been a very simular case to your childs recently that was granted and beleive they filed a writ of Mandamus

[Susie]

I posted this in a different thread , but thought it would be useful here


MANDAMUS - The name of a writ, the principal word of which when the proceedings were in Latin, was mandamus, we command.

It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice.

Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ.

This writ was introduced io prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Mandamus will not lie where the law has given another specific remedy.

The 13th section of the act of congress of Sept. 24, 1789, gives the Supreme Court power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States. The issuing of a mandamus to courts, is the exercise of an appellate jurisdiction, and, therefore constitutionally vested in the supreme court; but a mandamus directed to a public officer, belongs to original jurisdiction, and by the constitution, the exercise of original jurisdiction by the supreme court is restricted to certain specified cases, which do not comprehend a mandamus. The latter clause of the above section, authorizing this writ to be issued by the supreme court to persons holding office under the authority of the United States, is, therefore, not warranted by the constitution and void.

The circuit courts of the United States may also issue writs of mandamus, but their power in this particular is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction.

[Susie]

Sometimes the threat of Mandamus is enough for the service centre to review a denied case and reverse their decision, they don't like publicity or so I am told, but sometimes there is no other option

[j0emV]

Ok here is a letter I received today from Evelyn M. Upchurch, TSC Director:

Notice of Intent to Deny

We hereby serve notice of our intent to deny the application. You are granted thirty days from the date of this letter in which to submit to this office evidence in support of the application and in opposition to the denial. Please read and comply with the request below, then submit the evidence to the above address. Include a copy of this letter and place the attached gold sheet on top of your documents.

You have submitted an I-485, Application to Register Permanent Residence or Adjust Status, pursuant to Section 245 of the Immigration and Nationality Act.

The category checked was, "My spouse or parent applied for adjustment of status or was granted lawful permanent residence in an immigrant visa category which allows derivative status for spouses and children".

101(b)(1) of the Act states:

The term "child" means an unmarried person under twenty-one years of age...

You, turned 21 on July 8, 2002. You no longer meet the definition of "child". You also do not appear to qualify for an extension to adjust your status as a dependent beyond your 21st birthday under the Child Status Protection Act which became effective on August 6, 2002.

Section 3 of the Child Status Protection Act amends Section 203 of the Immigration and Nationality Act by adding:

(h) Rules for determining whether certain aliens are children-

(1) In general - for purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using

(A) The age of the alien on the date on which an immigrant visa number becomes available for such alien (or in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) The number of days in the period during which the applicable petition described in paragraph (2) was pending.

You, are seeking to follow to join your father. His visa became available on February 20, 2003, the date his I-140 application was approved. The I-485 application under consideration was filed on October 18, 2006, more than one year after the visa availability date.

You have submitted documents indicating you wish to use entries you submitted to the DV lottery for fiscal years 2005, 2006, 2006, and 2008 to satisfy the requirement "the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability." CIS interprets the phrase "sought to acquire LPR status" as being limited to filing an I-485 application for adjustment. You have submitted an unpublished BIA decision, In Re: JI YOUNG KIM, and a 9th Circuit decision, Padash v INS, to suggest USCIS should take an expansive, flexible fiew of the Child Status Protection Act. Neither decision provides precedence in this case.

You must submit evidence you have filed an I-485 application within one year of the date your fathers visa became available, February 20, 2003.

You must submit the requested information within thirty days from the date of this letter. Failure to do so may result in the denial of your application

Sincerely,

Evelyn M. Upchurch, Director
Texas Service Center

Officer #446


By the looks of the signature of this letter, she didnt even sign this. Its a digital signature thats all pixelated so I question whether or not she's even really seen my application. Below her signature it has Officer #446 so i'm assuming thats the person thats been working on my case. I'm wondering if they even really sought an advisory opinion on the case like they were supposed to from the DOS. My online status hasnt changed since the day they received the application even though i've already been in for finger printing and have now received this RFE.

So i'm trying to decide what's my next course of action. I mean its obvious that they CAN approve my case and do find some merit behind my claims but refuse to because they don't agree with the 9th Circuit Court of Appeals that the CSPA should be interpreted expansively. I mean thats the highest court in the land isnt it? I think its ludicrous that not only has the 9th Circuit made statements concerning the CSPA being interpreted as expansively as possible, but the Board of Immigration Appeals as well YET they refuse to even consider those notions because they simply don't want to do the work or for whatever reason it may be.

I'm not sure what to do, i'm thinking about consulting Eugene Palicious as they've had success arguing a few CSPA cases. I dont know what to submit because I never filed an I-485 up until this point because I plain didnt know I had this right. When my father started this whole visa process he lived in the states and I lived in the Bahamas. There was no way I could possibly keep up with US immigration law as a child and in addition at the time that he did begin his filing, the CSPA didnt exist. I was told twice that because I was nearing 21, I would not be able to apply with my father so there was nothing I could do. The CSPA was enacted a month after I turned 21 but I really had no idea. The only thing I was sure about was the DV lottery and so I entered myself in that every year for the past 4 years. According to the DOS, DV entries are considered petitions under 9 FAM so I submitted based on the idea that I basically tried to obtain LPR status for myself the only way I knew how at the time.

It saddens me to see that they go out of their way to deny applications moreso than they do to approve them. It's also frustrating because I can already see they're set to deny this, have me submit a reconsideration with another $300+ fee and then possibly deny that to then have me consult a lawyer and have this taken to court. This is money I dont have for this nonsense that could be avoided, I mean this is ridiculous I shouldnt have to go to court for something as simple as this. Could mandamus work in this scenario?

[Susie]

Hi JOemV

You MUST take urgent action now !!!

You have 30days to do something and should consult attorney without delay and instruct attorney

If you want my immigration atttornies number just send me a PM

In the meantime, do a search and read, #Motion to open or reconsider# and look into BIA Board of immigration appeals

Also read up on SEC 424 of the Patriot ACT as this may apply to your case

I am so busy right now, to answer you would yake me hours of reading but if you would like a chat pm your contact details

[j0emV]

I've scheduled a phone consultation with attorney Eugene Palacious for tomorrow afternoon. After going through his website he seems to be one of the few lawyers that get the CSPA. I'm also working on a 3 page response letter to the TSC director refuting her claims but i'm thinking i'm probably gonna end up hiring a lawyer to construct the response. I figure even if they deny the case, I can submit an appeal to the BIA and have it heard by a 3 member panel. Here's a bit of what i'm thinking of sending them, depending on what whichever lawyer I choose thinks I should do:

Dear Ms. Upchurch,

I received your Notice of Intent to Deny/Request for Evidence on Monday, November 20, 2006 in regards to my File: SRC07012xxxxx. In the letter you request that I submit evidence that I submitted an I-485 application within one year of the date my fathers visa became available, February 20, 2003.

In my original application submission, I plead my case as to why I feel I am eligible to adjust status to that of a permanent resident at this time. Like I stated in my original submission, at the time my father began his visa processing, the legal climate at the time did not offer me any options to adjust along with him because of INS processing delays. The law clearly stated at the time his Labour Certification was filed, April 30, 2001, as well as the date his I-140 was filed, May 29, 2002, that a child, for INS purposes was under the age of 21. I was living in the Bahamas at the time and was a student, there was no possible way I could keep up with U.S Immigration law outside the country, without any prior legal training or experience. I became 21 years old on July 8, 2002 and knew, based on what we were told by the INS as well as lawyers that there was no possible way I could adjust with him. We were told that he could file an I-130 for me but because I was over the age of 21 then, that there would be almost a 10 year wait. The CSPA was enacted on August 6, 2002 but even after its enactment, we were told countless times by the INS that I had aged out. I've inquired countless times over the years about filing the form I-824 and was told, point blank, no by the INS over and over because of my age. If call center operators and officers were trained correctly, we could have been given the correct information years ago. Granted immigration law is very complex and you may argue that one should seek legal counsel, again being a child living outside the U.S makes it very difficult to locate U.S legal help in a country practicing a completely different legal system.

As a young student, I felt my fathers I-140 petition was no longer an option based on the information we were given by INS officials. I applied for and received an F-1 visa and finished my degree in the states while I waited to see if I could possibly win the DV lottery, my only option I was aware of at that point. Like I said in my original submission, I entered myself into the DV lottery for 4 consecutive years (2005, 2006, 2007 and 2008) because I knew of no other way to obtain LPR status for myself other than waiting 10 years under the Family preference category. I submitted my first DV petition in fiscal year 2005 which was well within the 1 year requirement for the CSPA. The DOS recognizes DV entries as “petitions” and is construed as immigrant intent. I've proven to you that I attempted to obtain LPR status for myself through the only means I knew available to me. I've actively went out, took pictures year after year and submitted DV petitions because I had full intentions of living in the U.S legally since the day my father told me he began his visa processing in 2001.

You recognized that I submitted two approved cases, by the Board of Immigration Appeals, the highest administrative authority for interpreting and applying immigration law and the 9th Circuit Court of Appeals, the highest court in the land, that both lend support to my case. You recognize that both cases suggest clearly that the USCIS should take an expansive, flexible view of the Child Status Protection Act, which was Congress' original intent but still for some reason or another, refuse to do so. Interpreting “sought to acquire LPR” status as meaning an action as finite as filing an I-485 is not only myopic and discriminative, but also counter-productive. The Child Status Protection act is simply meant to protect children, who due to no fault of their own “age out” due to INS processing delays. Had there have been no delays in processing my fathers visa application, he would have been able to submit an I-824 on my behalf well before my 21st birthday. Even then considering the CSPA is meant to remedy the effects of visa petition processing delays only, his I-485 remained pending for well over 2 years which meant that I would not have been granted a visa until his adjustment was complete. This means that I would have been stuck in the Bahamas, unable to finish school until I was 24 years old. It was a little over a year ago that my father finally received his approval notice, he was approved a month after I graduated college, something I would not have been able to do if I were waiting on his adjustment. Looking at the words “sought to acquire”, one still can not simply jump to the conclusion that it means “filing an I-485” application for two reasons:

1. The literal meaning of the phrase is as follows:

a. The word “sought” is defined by the Miriam-Webster dictionary as,
i to resort to : go to
ii to go in search of : look for
iii to try to discover
iv to ask for : REQUEST
v to try to acquire or gain : aim at
vi to make an attempt : TRY -- used with to and an infinitive

b. The word “acquire”
i to get as one's own:
ii to come into possession or control of often by unspecified means
iii to come to have as a new or added characteristic, trait, or ability (as by sustained effort or natural selection)
iv to locate and hold (a desired object) in a detector

2. There are several ways one can become a legal permanent resident of the U.S. without literally filing an I-485 application. At the time my fathers I-140 petition was approved, he would have been required to file an I-824 on my behalf but of course, because it was an impossibility at the time he filed his I-140, he did not inquire about it again after applying.

You argue that neither decision I submitted provides precedence in this case. Granted, they are not precedential decisions but they do provide an indication of how both the Ninth Circuit court as well as the Board of Immigration Appeals feel Congress intended the CSPA to be interpreted. They are both the highest legal and administrative bodies in the land for cases like these. The BIA is not bound to DHS or DOS interpretations of immigration law and because of that, they remedied a case obviously wrongly denied by the INS and granted approval for the individual which is very similar to my own. The executive arm of the government tasked to implement the provisions of the CSPA, the USCIS should not be allowed to continue in its unjustified refusal and failure to implement the law through discriminative interpretations of the rules or guidelines. What also seems egregious is that considering there have been no precedential decisions made on the CSPA to date, the CIS still narrowly interprets the phrase “sought to acquire” as “filing an I-485” when the phrase itself doesnt literally lend support to that. If congress had intended for there to have been some kind of filing, they would have requested individuals to do so like they did all throughout every other provision of the CSPA but they chose not to because CIS officials, the DOS and immigration attorneys will agree that there are other ways to initiate a follow-to-join case. Even the CSPA Aldac #2 lends support to that claim hence why I submitted my case.

I sought to acquire LPR status through all means available to me, if immigration law were different at the time of filing, this would all have been simply avoided. This case need not be taken to the BIA or court, it's simply a matter of applying logic and humanity while adjudicating these cases. We are human beings, not pieces of paper. The legislative history of the CSPA seeks to provide relief for families torn apart because of INS processing delays. It would serve no purpose to deny this case simply because I had no idea as a young person living outside the country that I had this right afforded to me, YET I still tried and tried by all other means I found available to me. If it has to come to it, I will take this case as far as i'm legally allowed.

Sincerely

[Sharon]

A very good letter, but do not feel this letter will work. You need lawyer letter quoting various cases recently approved that are simular to yours as that is what they understand

There is no compassion, no thinking outside the box and unless in writing and in black and white they throw out as denial. You only have 30 days to prepare a case and quote a legal argument on a point of law, opinions or point of fact carry no weight

[Susie]

Hi

You quoted


I've inquired countless times over the years about filing the form I-824 and was told, point blank, no by the INS over and over because of my age


Just so you know, on your fathers I 485 application it states,

If you have a minor child abroad who is to follow to join you must submit I 824

The I 824 should have been submitted within one year of your fathers I 140 approval

I feel your only option is to file complaint, (Law suit) as your father did not file this for you within one year of I 140 approval.

Can you confirm the exact date fathers I 140 was filed and approval date, also you date of birth. please feel free to pm me this info as I want to check up on a couple of points and may be able to add some more comments

My attorney James LaVigne, is filing two lawsuits for cspa case, and has the book written by Charles Wheeler, head of Clinc, Catholic Immigration Network, not for profit organization. Both my attorney and I have said, we could have quite easily written the book as it only told us what we already knew

I think you will find the consutation will fly by, so maybe an idea to fax case details before the consultation starts, in simple point form, so he can review before the consutlation starts and maybe have answer for you

Please update this thread with exactly what attorney said, for the benefit of others to follow

[j0emV]

At the time of his I-485 filing I was 21 years old. He never bothered asking about my status again because before he filed his I-140 we were told that because I was nearing 21 it would be impossible. Basically, he gave up. He simply didnt submit an I-824 because we were told in the past it wasnt possible and the law changed after we were told that.

Before I can file a lawsuit, I have to exhaust all available administrative outlets. It means that if they deny after this RFE, then I have to submit an appeal to the BIA, whom I can then motion to reconsider. I can then, I believe, file a lawsuit. In my original submission, I quoted various approved cases but they still looked past that. At this point I would rather turn this over to a lawyer.

Thanks for the tip, i'm going to send the attorney the details beforehand so he can take a look over it. I have a phone consultation set at 2:00 tomorrow afternoon.

[j0emV]

Hey Susie, I just wanted to check in to see what was the latest on your case? I'm still fighting mine out and submitted the response to that RFE, now i'm just waiting. I'm actually going to submit more documentary evidence today after reading this little tidbit on the Shusterman Immigration Update (Jan 2007):

6. Ask Mr. Shusterman: How CSPA Works with Respect to "Age-Outs"
This month, we received several questions from our subscribers regarding the complex provisions of the Child Status Protection Act (CSPA) including its effect on children who turn 21 before the parent receives his or her green card based on an employment or a family-based petition. Sometimes, CSPA protects children from aging out, and it is not unusual for a 22-year-old to adjust status because his "immigration age" remains below 21. Other times, a child who ages-out despite CSPA may be able to obtain permanent status through another section of CSPA which confers benefits on sons and daughters who have "aged-out".

Example #1 - Mr. Kumar was born in India. He came to the U.S. as an H-1B computer professional in 1999. In March 2001, his employer submitted an application for labor certification on his behalf. This application was approved in 2004. On June 30, 2004, his employer filed an immigration visa petition (form I-140) for him. Simultaneously, he, his wife and his daughter Krishna all applied for adjustment of status (forms I-485). His son Rakesh is a senior at the London School of Economics. He would like to immigrate to the U.S. as soon as possible.

The CIS approved the I-140 on December 30, 2004 and the I-485s for Mr. Kumar, his wife and his daughter on October 15, 2006. His son Rakesh turned 21 years of age on October 2, 2006.

The general rule is that only the principal, his spouse and his unmarried children who are under 21 years of age may obtain permanent residence at the same time as their parent or may follow-to-join their parent in the U.S. at a later time. Since Rakesh was already 21 years old when his father obtained his green card, does CSPA prevent him from aging-out?

Analysis: CSPA requires a three-part analysis in the case of "derivative beneficiaries". Mr. Kumar is the principal beneficiary since he is immigrating through his employment. Rakesh is a derivative beneficiary since he is immigrating through his father's job.

1. Step #1 - Determine Rakesh's age on the date that his father adjusted his status. His age was 21 years and 13 days.

2. Step #2 - Subtract from Rakesh's age the amount of time that his father's I-140 was pending. Since Mr. Kumar's employer filed an I-140 on his behalf on June 30, 2004 and it was approved on December 30, 2004, this period of six months is subtracted from Rakesh's age making his "immigration age" 20 years, 6 months and 13 days. Since this is less than 21 years, this means that Rakesh is considered a "child" under CSPA.

3. Step #3 - Rakesh must apply for an immigrant visa within one year of the date of his father's adjustment of status. The easiest way to start the application process would have been for Mr. Kumar to file form I-824 for Rakesh with his application for adjustment of status. If he failed to do so, he has one year beginning on the date that he adjusted his status to submit the I-824. If he does so, Rakesh may follow-to-join his family as a permanent resident no matter what his age when his immigrant visa is granted. His age, for immigration purposes, is frozen at 20 years. However, should he marry even one day before he arrives in the U.S., he would no longer be considered a child, and would lose this opportunity to follow-to-join his family in the U.S.

This is very similar to my case. I know that derivatives of LPR's have follow to join rights as long as they exercise those rights within 1 year of the principals adjustment approval. This kind of conflicts with the CSPA because they expect you to submit the I-824 at the same time the principal files his I-485. That wont happen in all cases, including mine and so for CSPA purposes, the 1 year clock should start ticking away after my fathers I-485 approval. You dont HAVE to file an I-824 the same time you file your I-485, that would defeat the purpose of the follow to join benefits. And once you have submitted an I-485 without the I-824, you cannot submit the I-824 until AFTER the I-485 is approved or else they will reject the I-824. So basically i'm thinking that in theory, I am still good for that 1 year requirement because my fathers I-485 wasnt approved until August 29, 2005 and I have documentary evidence that I called the CIS in that regard and have consulted lawyers within that timeline. This is what I will be submitting today. It just ****es me the hell off that the immigration officer working on my case, as well as the TSC director expects me to have filed an I-485 when I actually wasnt even physically present in the states at the time. I still had my follow to join rights and they're being unduly restrictive with their interpretation, I mean its beyond ridiculous.

[Susie]

Hi

If you have my contact details please call me, if not please pm your contact details

[GKG]

Hi Susie, Joem

I am also thinking of filing for an AOS for my daughter - does it make sense to hire a lawyer who has already won such cases?
Now I got my GC in May 2006, and my application became current in March 2006. I filed the I-130 for my daughter in May 2006 and have a receipt notice dated 22nd June 2006.
So is it necessary to file for AOS within one year of getting my GC?

Regards

[mark]

Hi Joem

Is your daughter in the US or abroad?

[Susie]

Hi

I did not get a fax of appeal details ? but spoke to my attorney when I went to see him yesterday about your case


Let me know how your referral goes

[GKG]

Dear Sue

What lawyer do you suggest if I want to file for an AOS for my daughter? You know the who;e case - my daughter is currently in USA on a student visa.
Please help

kind regards
GKG

[v2002]

Dear Sue

What lawyer do you suggest if I want to file for an AOS for my daughter? You know the who;e case - my daughter is currently in USA on a student visa.
Please help

kind regards
GKG
GKG,
If you dont mind could you tell me the following information if not on board may be in PM?
1. Your application CAT( On what visa did you enter USA )
2.Your PD & Country your spouse's country of birth if diff from yours.
3.Your daughters entry visa status in usa for the first time.
4. her current correct age. If she is still under 21.When did she get on F1 visa is it still current if yes till when.
5.Did you include your daughter in your immigration petition?
As you got your Gc in 2006 you are running out of time so please respond ASAP. I will check for your post or PM.If you dont mind what state are you in and do you claim your daughter as dependent on your taxes?
If you can tell me this may be I can guide you.. also please tell if you filed I-140 was it filed concurrent or seperately and the dates/ year they were filed.One last question why wont you let your lawer file for her ? why would you want a new lawer for her ?
good luck

[Susie]

Dear Sue

What lawyer do you suggest if I want to file for an AOS for my daughter? You know the who;e case - my daughter is currently in USA on a student visa.
Please help

kind regards
GKG


Hi

Sorry, only just noticed your posting, I have been having a bad time of late and will have to refresh memory and get back to you, unless vip replies in the meantime

[forbor4c1980]

Thanks to everyone on this thread that have contributed to sorting out the CSPA. Do you guys think I would qualify to adjust my status right now under the whole "retention of original priority date" deal?

I'm a Filipino citizen born in 1980. My sister who was a USC petitioned my parents and I in 1996. Our priority date was Sep 1996. Once my Mom obtained her green card she filed another petition for me. My priority date for that I-130 is Jan 1998. I turned 21 in 2001 and subsequently aged out. Now obviously I'm still considered an adult despite the mathematical formulas used to determine my "USCIS" age. But from what I have been reading, isn't my "original priority date" Sept 1996 (the priority date of the 4th based preference petition filed on my behalf by my sister) and aren't I under the 2B based category? The current number for the 2B category is Oct 1996. Thanks everyone!

[Munish]

Hi,

I am a new member after reading this thread on age out. I was wandering if anybody knew if USCIS are still denying retention of priority date applications despite CSPA, section 3, Garcia and the fact that in some case such applications are being approved but not in others.

I am actually waiting to hear from them shortly about my own case and am concerned that they are going to erroneously reject it (maybe paranoia) and so would have to appeal.

Essentialy, my Father was originally sponsored by his USC sibling (F4) in 1991. My Mother, sister and I were derivative beneficiaries but I aged in 2000.

I went to USA 2002 to study for an LLM in International law at Georgetown for year on a non-immigrant visa and returned to the UK in 2004 after doing one year's work experience. Essentially, I have made many friends there during this time and can't wait to go back.

About that time (Summer 2004) the immigrant case became current and my Dad, Mother and sister subsequently got their green cards in 2005 after they moved there. I am left here. My Dad immediately filed a new I-130 for me as an F2B. The petition was approved, but with a new prioirity date, and forwarded to the NVC. I subsequently found about the CSPA and after seeing I aged out even with the CSPA calculations realised I can retain the original priority date. I wrote the NVS, who then forwarded my request for retention of the original priority date to the USCIS (so this is the second review I am waiting for!!!), which they received in March 22, 2006.

From the processing dates on January 17, 2007 USCIS were reviewing applications on March 12, 2006. This means my request will soon be reviewed (although there was no movement on the March 12, 2006 date since December 18, 2006 so it seems no petitions were reviewed last month).

However, reading a lot of articles and other websites I am very concerned that USCIS will reject it despite CSPA, section 3, despite Garcia and despite the fact in some cases lawyers are representing persons in similar positions successfully. It seems from my research that not all cases are being appropriately reviewed or may be I am being paranoid (so I am now researching lawyers for a potential appeal from my Father).

Does anyone know how similar requests for retention of priority dates (as a beneficiary derivative (F4) to F-2B status) have been treated recently? I know the law is on my side, but it sounds like when it comes to the USCIS that could be irrelevant, particularly because they still have not issued a memo or other guidance on the issue. I actually wrote to USCIS and named the Garcia BIA decision recently (as well as other cases reflecting the CSPA was intended to be read expansively), but fear that may fall on deaf ears. My only interest (as with many other thousands of people is to be with my family).

Hopefully, look forward to any good news stories in similar cases.

[Susie]

Hi Mun 79 and a warm :welcome:

Thank you for sharing your story.

The CSPA is badly written and needs a leglaslative fix. Whilst there have been cases approved at court the USCIS does not seem to take them into account and there has not been a final ruling on the CSPA

The head of the advisory opinions section is not tending to favor age outs and why so many are still having to go to court.

There is no telling what will happen in your case and only time will tell. Do you have an attorney and if so what does he/she say?


You must be ready if denied as you will only have 30 days to appeal your case so would recommend you start getting an appeal and documents ready. If your appeal is denied then your only action would be is to file a complaint.

The CSPA is supposed to be interpreted expansively but is not. Also it is not retrospective. It seems you aged out before your parents had their green card and you also aged out before the CSPA was enacted in Aug 2002, have I read this correctly? if so does not look good

[Munish]

Thanks Sue,

Yes, exactly as I feared. I have not hired an attorney yet but I have been researching it from today. I have hope that even if this is rejected, the Board of Immigration Appeal decision of Garcia in June 2006 would help (this involved the same type of visa categores as my case, in which the derivative, Maria, also aged out before the CSPA was enacted). Off the top of my head in that case the green cards were given to Maria's Mother before the enactment of the CSPA (which is an extra expansive interpretation), whereas in my Parents' case it was after the enactment of the CSPA so it should apply.

I've told my Dad to be aware of the need to appeal within the deadline if, in my opinion, an erroneous decision is made.

Bureaucracy, hey!!! Will let the forum know the outcome of the initial decision once I know.

[forbor4c1980]

Thanks to everyone on this forum that have contributed to sorting out the CSPA. Do you guys think I would qualify to adjust my status right now under the whole "retention of original priority date" deal?

I'm a Filipino citizen born in 1980. My sister who was a USC petitioned my parents and I in 1996. Our priority date was Sep 1996. Once my Mom obtained her green card she filed another petition for me. My priority date for that I-130 is Jan 1998. I turned 21 in 2001 and subsequently aged out. Now obviously I'm still considered an adult despite the mathematical formulas used to determine my "USCIS" age. But from what I have been reading, isn't my "original priority date" Sept 1996 (the priority date of the 4th based preference petition filed on my behalf by my sister) and aren't I under the 2B based category? The current number for the 2B category is Oct 1996. Thanks everyone!

[Susie]

Hi Mun79

If I am correct, (please bear in mind I am not an attorney) then I also doubt you would be allowed a retension of prority date

We at expats voice, need funds urgently so we are able to employ a lobbyist to re-write an amendment into the CSPA to say the CSPA is supposed to be read and interpreted expansivley and therefore should cover any child who aged out in cases like yours and simular to yours

[Susie]

Thanks to everyone on this forum that have contributed to sorting out the CSPA. Do you guys think I would qualify to adjust my status right now under the whole "retention of original priority date" deal?

I'm a Filipino citizen born in 1980. My sister who was a USC petitioned my parents and I in 1996. Our priority date was Sep 1996. Once my Mom obtained her green card she filed another petition for me. My priority date for that I-130 is Jan 1998. I turned 21 in 2001 and subsequently aged out. Now obviously I'm still considered an adult despite the mathematical formulas used to determine my "USCIS" age. But from what I have been reading, isn't my "original priority date" Sept 1996 (the priority date of the 4th based preference petition filed on my behalf by my sister) and aren't I under the 2B based category? The current number for the 2B category is Oct 1996. Thanks everyone!


Hi

Again, another example of just how complicated the CSPA rules and regulations are.

I am going to have to think about your case and get back to you

[Munish]

Hi Mun79

If I am correct, (please bear in mind I am not an attorney) then I also doubt you would be allowed a retension of prority date

We at expats voice, need funds urgently so we are able to employ a lobbyist to re-write an amendment into the CSPA to say the CSPA is supposed to be read and interpreted expansivley and therefore should cover any child who aged out in cases like yours and simular to yours


Hi Sue and everyone, Yes a rewrite would be very helpful (and in the short term so would guidance by the USCIS). Maybe I am wrong, but it seems the BIA case I referred to (link provided) of Garcia is directly helpful and I can't really see how this is different to my situation (or any other F4 derivatives turning into F2Bs who aged out before the CSPA was enacted). However, naturally I am trying to avoid being overly optimistic at this point and am anticipating an appeal will be necessary. Have you or anyone else read the Garcia decision full and what do you think? Here is the link to the Garcia decision in pdf format

http://shusterman.com/pdf/cspa-bia606.pdf

[Susie]

Hi

Yes I did read it a while ago but as I said I do not think the BIA or advisory opinions section take this into account. I beleive this is because they may not be able to until such times as a leglaslative fix has been made and why we should all take legal action and argue the intension of CSPA is to protect children and does not ! ( in all cases ) The USCIS is also in favour of family reunification, makes me so mad, but the more that file a complaint the better, then and only then do I feel there will be another cable on the subject as to the correct way to interpret

[Munish]

This case might be of interest general as well (Padash v. INS, 358 F.3d 1161 (9th Cir. 2004), as it states the CSPA must be interpreted expansively (or it does according to an American Immigration Law Foundation advisory release on "age outs" (see http://www.ailf.org/lac/lac_pa_022405.pdf))

Yes. I know what you mean. It's a very stressful situation at the moment and am very frustrated with the situation (as are many people)! At least the Democrats are in (albeit slim) control so hopefully not only will there be a geniune positive overhaul of the immigration system as well as the legislative fix on this issue. My career is at a standstill because of this situation, but it's not as if that matter to the USCIS.

I have heard a few people talk about class actions etc. Is anything actually happening on that front? If I do manage to move to the USA I'm seriously considering doing pro bono work as an immigration lawyer or doing something in immigration. This whole thing is just madness and it's no wander so many people's lives are in turmoil!

[Susie]

Hi Mum79

I agree with you and may well start a career in immigration law and join you, they make a ton of money

[Munish]

Hi Susie and Everyone,

So I thought you might be interested in this. I heard from the USCIS who reaffirmed the original priority date as feared, which sucks. Also got advice from an attorney (I won't disclose his name as I don't want to risk misrepresenting the advice given below and attaching a name to it, but the person is very reputable and knowledgable in the CSPA) and that is not good news either. According to the lawyer:

1. I have no right to appeal to an Immigration Judge or BIA because my petition was approved, albeit a with different priority date (what a stupid system);

2. My (Dad's) first option is to file suit in the Federal court to require the courts to issue declaration notice to force an interpretation of the statutory provision as the USCIS up to know have failed to do so, which they are statutorily obliged to do. This will take many months and costs thousands, more likely tens of thousands of dollars. We don't have that kind of money and it would be a complete waste if the USCIS did issue an interpretation on USCIS, section 203(h)(3). However, if there are many people making such an class action that would interesting;

3. My second option is to come to the USA, apply for adjustment of status, and then the USCIS will have to make a decision. If it is denied I would be become subject to deportation proceedings but then I would have a basis of appeal and could then use the BIA Garcia decision in an adminstrative appeal. However, I am not going to do anything that could compromise my immigration application. It is bizarre and frustrating that there is a system which penalizes people who adhere to immigration laws and rewards those that risk deportation;

4. The USCIS after four and half years have still not issued an interpretation on INA, 203(h)(3) even though they are obligated. They have said they would do so in the past, although there is no indication they will, but it is still due. Once this is released, only then I might be able have a basis to directly request an earlier priority date (potentially good news);

5. The fact I had a nonimmigrant student visa after I age out is irrelevant and could not have factored in the USCIS decision (which is potentially good news for anyone with similar circumstances); and

6. On the retrospective issue (under CSPA, section 8), no decision has decided that in relation to application is pending on the CSPA enactment date, that this includes a petition on which a derivative beneficiary ages out. In Garcia, the adjustment of status application was pending even though her Parent's petition was finally approved before the CSPA enactment date. In my case, my Parent's F4 petition was pending on the CSPA enactment date, but no interpretation states whether this type of application is covered by the CSPA - a strange anomoly. This is exactly why an application for interpretation by a Federal Court would help, but is far too expensive.

The other action I am taking with my Dad is as follows (but I am not at all hopeful):

1. I have written to the USCIS ombudsman and recommended that he pushes the USCIS to issues rules in this area, and expand the basis for adminstrative appeals so an appeal could be made in limited circusmtances where a decision is approved but with a different priority date. This because of the adverse effect. It could be years before I am reunited with my family and they are questioning whether this is worthwhile. I cannot contemplate marriage as a permanent resident cannot sponsor a married son or daughter. Many of my friends and family are in the USA, while I am (currently) forced to wait for years. Crazy! I am told this office is so under resourced that this will probably not result in any result.

2. My Dad called the USCIS national customer line after my Dad received the USCIS notice who stated earlier prioirty dates are usually given to beneficiaries who were on an F4 petition as a derivative beneficiary. They advised him to write to the USCIS and gave us a special fax number, so we faxed and wrote by certified mail last week.

A friend of mine who is an immigration lawyer also told me she always requests CSPA protection on an I-130 application where applicable and also includes a separate letter, and in all cases this has been successful including in relation to age out priority date retention (I don't know if these are in F4 (or other categories that have a derivative beneficiary) to F2B cases though.

If I receive no response in 30 days to the fax I and certified letter I sent to the USCIS, which is apparently most likely, I will see what the USCIS Ombudsman can do.

[Susie]

Hi

Think you should find interesting



1. BIA Addresses Effective Date of Child Status Protection Act
The Board of Immigration Appeals held that INA Section 201(f)(1) applies to an individual whose visa petition was approved before the August 6, 2002 effective date of CSPA, but the I-485 was filed after that date. Therefore such individual retains his status as a child. In re Matter of Rodolfo AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007) The full BIA decision is available on AILA InfoNet at document #07021561: http://www.usdoj.gov/eoir/vll/intdec/vol24/3551.pdf

[Susie]

Hi Mun 79

Please let us know how your case progesses, doe's my above post help in any way?

[Susie]

Hi

See page 2 ref aging out


http://www.ailf.org/lac/litclearinghouse/litclr_newsletter_101306.pdf

[Susie]

CSPA Case decided Feb 07


http://www.usdoj.gov/eoir/vll/intdec/vol24/3551.pdf

[Munish]

Thanks Sue,

Yes, coincidentally I actually discussed this BIA decision with the attorney which he said is further good news that expansive interpretations are being made. However, the BIA and Federal district court decisions involve applications in which the beneficiary was a principal beneficiary and it may be the USCIS is looking at things this way - or may be my case was adjudicated incompetently by an insufficiently trained and incompassionate officer.

Unfortunately, on my Dad's original petition, I was a derivative beneficiary so these cases are not directly helpful in my particular case. However, on my side is the fact, although I aged out before the CSPA was enacted, my Dad's I-130 was pending with the National Visa Center on the date the CSPA was enacted and became current in September 2004 (and therefore should be covered by section 8(3) without dispute even though I aged out before the CSPA enactment date). This is also implied by the USCIS's own interpretation (at the top of page two on http://www.immigration.com/newsletter1/childprotac.pdf)

The problem is, there is no BIA/Court decision or USCIS rule stating the CSPA applies in relation to derivative beneficiaries seeking to retain a priority date in my circumstances. Clearly the plain language to the CSPA, the intention of Congress and all these BIA/Court cases demonstrate there should be no problem in my case.

Unfortunately, while many people have told me I should be able to retain these benefits and have confirmed my interpretations as common sense, dealing with the USCIS is whole different ball game. I think you said to me before that the USCIS are not tending to favor age outs, and this is the fundamental problem - not the issue of my legal rights, but dealing with the narrow mindedness and the bureaucracy of the USCIS.

Unfortunately, because I have approved petition, I cannot appeal through the AAO or open a motion to reconsider, which is just plain stupid. My only recourse is to seek a declaratory judgment on the issue in the district court, which is well beyond my Father's means (but I am open to the idea if all else fails). It is possible someone else may have filed a similar suit for a declaratory judgment but I would not hold my breath on that bearing in mind the expense involved.

The only hope I have now is if the USCIS responds to our fax and certfied letter, which from seeing other experiences on these forums may not be promising. The other hope is if the Ombudsman takes up the issue with the USCIS (first I have to wait 30 days before this can happen). I may even have to get my Dad to do an Infopass appointment with a field officer, but from what I hear, field officers have about as much contact with the Vermont Service Center as we do and are not particularly helpful in any case.

It is so frustrating because I heard in California, people have been succeeding in retaining the earlier priority dates so clearly the cases are being adjudicated inconsistently.

Will update you as things move on.

[Munish]

Have you heard of H1 Base (www.h1base.com), it is an agency the deals with seeking employment for international students and people wishing to move to the USA? It seems genuine as it appears on other school websites as well and was wandering if you know anyone who has experienced their services.

[mtl777]

Hi, I'm glad to find this thread. My son, a derivative of my USC mom's petition for me, had aged out when my priority date became current in March 2005. Immediately that month I hired a lawyer to work on our case. Unfortunately, the lawyer told me that my son had already aged out and could not adjust status together with me. So I adjusted alone (I-485) and the adjustment was approved (got my green card) in January 2006. By the way, my son is here in the US on an expired H4.

Eventually, I read about CSPA section 203(h)(3) from an article by Atty. Eugene Palacios, which prompted me to file an I-130 F2B petition for my son in May 2006 with the hope that he could avail of my old priority date of November 1990. This I-130 is still pending until now. Then months later, I heard about the BIA decision on the Garcia case, which gave a convincing though not precedential example of the expansive interpretation that conversion to the appropriate category (F2B) is automatic and an I-130 petition need not even be filed. This prompted me to file I-485 AOS and I-765 EAD applications for my son in November 2006 even though the I-130 was still pending. The I-765 was recently approved and my son got his work permit. The only problem is the I-485. I was happy until I read that the CSPA requires the applicant to have "sought to acquire status" within one year of the visa becoming available. My questions are these:

1. When do you start counting the one year? From the date my priority date became current or from the date my AOS was approved? It seems unfair to count from the date the priority date became current because if one is unaware of CSPA section 203(h)(3) as most people are (even some attorneys!), one would normally wait for his own adjustment to be approved before filing a petition or adjustment for his dependent. My concern is that if the USCIS interprets the counting to begin from my visa availability date then my I-130 and I-485 for my son would be too late. But if the counting starts from the date my AOS was approved then my son is safe.

2. Regarding "sought to acquire status", could my hiring an attorney in March 2005 be considered as seeking to acquire status, thus satisfying the CSPA requirement, even though the attorney at that time was of the opinion that my son could not adjust status together with me?

Please, I would appreciate if you could provide links to real life examples of similar cases that would help address these questions.

Thank you so much!

mtl777

PS

To JoeM or anybody with a similar case:

Did you apply for I-765 EAD and got to the point of receiving a work permit only to be denied later on? I'm wondering if my son's work permit is indicative of eventual approval of the I-485. My lawyer says it is not.

Thanks again!

[Munish]

Hi Mtl777,

I would be really interested to know what happens to your son's AOS, particularly because of the issues I am having! As for the answers:

1. I don't recall off hand if there are any interpretations, but here is the statutory provision of section 203(h).

(1) In general
For purposes of subsections (a)(2)(A) and (d) of this section, a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 1101 (b)(1) of this title shall be made using—
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d) of this section, the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

Your son would not have the ability to adjust status when your original priority date was current. At that particular time you still are not a permanent resident. Only when a visa is approved, and you have the status of a permanent resident would your son be able to seek to acquire permanent residence (because it is not "available" before that point, i.e. until such time there is no basis for a petition). It does not make any sense to me if they took the date from when the priority date became current, and I would be very surprised, no shocked, if that interpretation is being taken. The reference to the date of when the visa number became available above is relevant to calculating the beneficiary's age for the purpose of determining whether or not he or she is still classified as a child - and not to the "sought to acquire" requirement.

2. As for the answer to question 2, the BIA in an unpublished decision has already decided the hiring of an attorney comes within the definition of "sought to acquire." See Point 2 at http://www.ailf.org/lac/lac_pa_022405.pdf. His or her competency should not be an issue. If you have some kind of evidence that you hired the attorney that would be useful.

I believe your son should be approved, but even if he is denied (e.g. out USCIS incomptency) you would be able to appeal if this would subject him to a deportation notice. My advice is to prepare for the worst case scenario, just in case, and put your case together. On appeal (even if not to the Immigration Judge but to the BIA) you should be fine.

I should clarify, although I am an attorney, I am not a practicing immigration attorney, but from hearing of all the stories such as yours, it clearly does not take much to be one!!!

[j0emV]

Hi, I'm glad to find this thread. My son, a derivative of my USC mom's petition for me, had aged out when my priority date became current in March 2005. Immediately that month I hired a lawyer to work on our case. Unfortunately, the lawyer told me that my son had already aged out and could not adjust status together with me. So I adjusted alone (I-485) and the adjustment was approved (got my green card) in January 2006. By the way, my son is here in the US on an expired H4.

At that point, once the I-130 petition is approved AND current, your son had 1 year from that date to then submit an I-485 according to the CIS. There is a BIA approved case where the respondent hired an attorney to prepare the paperwork BUT didnt actually file until 17 months later. The CIS, of course, denied the case as they interpret "sought to acquire" being limited to filing an I-485, the BIA overturned that decision. I submitted that decision, padash, and a few other BIA cases that prove that i'm eligible but the CIS still turned around and denied my case anyway. They will take your money for the EAD and AP and still turn around and deny the case. Those applications being approved have nothing to do with the 485's approval probability. Now, your son should still be able to retain that priority date, in fact a few attorneys have been able to successfully argue for that benefit with the CIS. Eugene Palacious comes to mind. You can check out his website at:

http://www.palacioslawfirm.com

You should not have to go to court to take advantage of that benefit, its clearly stated in the CSPA but you have to present your argument as clearly as possible to the service, namely the brain-dead officer that will be adjudicating your sons case. What i've seen these attorneys do is submit an I-130 on behalf of their clients, attaching a memo with information regarding the priority date they would like to capture pursuant to the CSPA (this includes a copy of his birth certificate, the original petition AND approval notice). I would include a copy of the CSPA with that section highlighted and clearly marked for them to see. Once that I-130 comes back approved with the original priority date, they then submit I-485's on behalf of the clients. In some cases because the priority dates are current, they can submit them concurrently I believe although that i'm not positive about. The automatic conversion is really hit or miss with them, its good that you sent in an I-130 already. If you havent already, I would send them supporting details arguing for the original priority date BEFORE it's approved because I heard its hell getting them to change the priority date on an approved petition.

So yes, the CIS denied my AOS app, which leaves me no choice but to try the CP route. I spoke with someone at the state department the other day and they told me they way i'm thinking it should work is the way it does work. That because my father had already submitted his I-485 without an I-824 for me that gave him 1 year AFTER approval to submit the I-824 on my behalf because of following-to-join rules.. My CP case is much stronger than my AOS case so i'm a little hopeful this will work out BUT I will not leave the country to do this until i'm absolutely sure they're not gonna screw me over. If that means I have to talk to the US Ambassador in my country and our Ambassador here in the states then thats what i'll have to do. I'm not gonna let the USCIS screw up my life.

[mtl777]

Hi Mun79:

Thank you so much! I'm glad to know that the within-one-year requirement of seeking to acquire status applies only to the age calculation and not to the retention of priority date provision in 203(h)(3). The retention of priority date is all I am after, because my son had aged out anyway regardless of whether or not he sought to acquire status within one year of my visa availability.

That URL you gave which cites the Kim case will be very helpful to me in case the USCIS, out of incompetence, requires an actual application to have been filed within one year of my visa availability in order for my son to qualify for retention of priority date. I have the lawyer's bills, copies of the checks I paid, and numerous emails discussing my son's case with the lawyer to support the fact that I indeed sought to acquire status for my son immediately upon my visa becoming available.

Again, thank you very much and best of luck to you as well! :)

mtl777

[mtl777]

Hi JoemV:

Sorry to hear about your struggles with the USCIS. So, did you apply for an EAD and got approved for it, only to be denied the AOS later on? Did you already have an interview for the AOS or did they send you outright the letter of notice of intent to deny without interviewing you first?

Your suggestions will be very helpful to me. In my I-130 petition for my son, I actually attached a letter citing CSPA section 203(h)(3) and asking for retention of priority date on that basis.

Thank you so much and I wish you all the luck on your case! :)

mtl777

[Susie]

Hi MTL777 and :welcome:

Glad you could join us and hope you find our site interesting

There are various ways to prove you sought to aquire and immigrant visa, in fact there was a case whereby they beneficiary did not file an immigrant visa within the one year time frame, but as he employed attorney the judge said this proves immigrant intent

The fact you employed an attorney could well help your case. Also you can prove your parent employed attorney.

I will comment further when I have had a chance to re-read your posts

[Munish]

Why oh Why oh Why!

Wow! So it looks like the USCIS are still rejecting these types of cases as a matter or policy despite all the recent BIA and court decisions. I just don’t understand this attitude and this just really angers me. These people have no regard for the fact that they are playing with people’s lives. All they seem concerned about is meeting targets with little emphasis put on doing the right thing or improving their systems. There is just so much inconsistency with the USCIS. On the phone with the USCIS I was advised I should receive the earlier priority date and that I should fax Vermont Service Center, which my Dad has done. I have read that some practitioners on the East Coast are successfully capturing the earlier priority date.

I am trying to exhaust all non-litigation avenues but all is not looking good by reading the above.

Action through the USCIS Ombudsman

I have written to the USCIS Ombudsman with two recommendations:


My first recommendation was that he should push the USCIS Director or board to issue new rules on interpreting the provisions on age out and retention of priority date on the CSPA because of the adverse impact the USCIS’ treatment is currently having on families, and which is contrary to the legal provisions, the intention of Congress and the interpretations of the court an the BIA; and
My second recommendation is that he should push for new rules to be developed allowing for administrative appeals on approved petitions, but on which a priority date is under contention, because of its adverse effect.

I have not received any response from the USCIS Ombudsman, even though I wrote last week (possibly because I am the only person who has brought up the issue). I recommend anyone reading this, particularly if they are in similar positions and seeking retention of priority date benefits, to also make the same recommendations. His email is cisombudsman@dhs.gov and the procedures for recommendations are specified on his website (just google “USCIS Ombudsman”). Hopefully, this could be a situation where people power might work.

Writing to the USCIS Director and the Press

This is unlikely to work, but I am thinking of drafting a letter for submission directly to the USCIS Director. I would like to write inviting the issuance of new rules or a memo in this area (perhaps even with proposed material). If I decide to do this I will post it next week and see what people think and may be others can write too.

In addition, or as an alternative, I would be interested to know if people think a petition might be a good idea. We could present it to the USCIS, but it is likely to go into a pile of “deal with later” letters. I was thinking of seeing if we can get the press to cover the story, particularly if there are enough people being affected by this issue, with the ultimate aim of bringing this to public attention and getting higher level support with more influence – or at the very least getting a legislative fix entered into the upcoming Comprehensive Immigration Reform Bill to eliminate all so-called ambiguities of the CSPA.

Proposed Rules

Any proposed rules should give the State Department automatic powers to review the cases in hand to avoid lengthy processing delays through a USCIS process. When I wrote to the NVC regarding the retention of priority date, instead of immediately dealing with the issue themselves, they sent that request to the USCIS and I had to wait 10 months for a decision (as if it was a new application), which ultimately was not in my favour. In California I hear it is much worse, where new I-130 applications can take about 2 years.

Clearly, these are very ambitious goals at this stage but any thoughts would be welcome so I can see whether the effort is worthwhile or not, and whether there is any support for any such action. It may be that teh Federal court is the only answer.

Mun79

[j0emV]

Hi JoemV:

Sorry to hear about your struggles with the USCIS. So, did you apply for an EAD and got approved for it, only to be denied the AOS later on? Did you already have an interview for the AOS or did they send you outright the letter of notice of intent to deny without interviewing you first?

Your suggestions will be very helpful to me. In my I-130 petition for my son, I actually attached a letter citing CSPA section 203(h)(3) and asking for retention of priority date on that basis.

Thank you so much and I wish you all the luck on your case! :)

mtl777

You can still send in more information while the petition is pending. I would send in a copy of the CSPA with that section highlighted, a copy of the original approved I-130 petition and its approval notice as well as that memo just to be thorough. The memo may not be enough but if thats what you did then I feel certain your case will come out fine. They havent been as restrictive about the priority date retention as they have been about the "sought to acquire" statute.

I didnt have an AOS interview, I had an approved EAD and AP, which we're both revoked with the denial. I also didnt submit a motion to reopen or consider either because arguing with these people is like arguing with a brick wall and they havent initiated removal proceedings against me because i've been here in legal status most of my stay. My denial notice proved to me exactly how little they care about peoples lives. There was nothing but incorrect data in the denial notice. In it, they said that my underlying petition was approved in October 2002 and my 485 was submitted in June 2005. Thats completely wrong, my petition was approved in Feb 2003 and my 485 was submitted in Oct 2006. Granted I didnt submit a 485 within a year from Feb 2003, but that was because I was a following-to-join case. My father adjusted in the states and I was still back home through alot of this. All I wanted them to see is that I was supposed to do consular processing but opted for AOS at the time I became eligible for CP. They're demanding that I did something retroactively that I had no legal basis to do. I just think it would be easier going the CP route because it was the way I should have done it instead of wasting time and money with this AOS crap. But i'm going to fight this out with our Embassy and Ambassadors before I leave the US to do it. There is no way in hell i'm going to leave, to then be denied when I get there and have no basis to return. I already have my life and career structured here, i'm not going to let the state department or the CIS destroy that.

We should be getting the receipt notice for the I-824 from TSC sometime this week or next week, and once that arrives I will fedex a copy of that off and a DS-230, in addition to all the supporting documents to our embassy to initiate the process. Our Embassy works pretty quickly so I should see some movement by March or April. They're able to issue visas within days usually, it's just they're not that easy to get along with.

[JakeCastle]

Tearfully eyed, I remember going g to the mall with brother as shopped for a pair of sandals, after which my brother and I shared a meal at the local Kenny Rogers Roaster’s at the local mall. It was the last meal I remember that my brother and I sat together and ate out, it. I remember filing for a leave of absence so I can accompany my family, my mom, my dad, my brother to the airport. Sadly I could not board that plane and I was left alone. This was the last time we were together as a family.

Seven years…. It has been almost seven years … Since then my brother, studied, graduated, earned a license as a nurse and had a son. Since then my mother has done what she could to visit me ever other year and my father had visited me six years ago.

Do I still know them… as in know them as FAMILY? The years of separation has caused me and my family incalculable suffering. Can a cold and heartless bureaucrat answer my question? Who grieves more, the mother longing for her son or the son longing for his family?

To mothers who yearn to be with their off-springs, to all sons and daughters yearning to be with their families my heart goes with you. For the longest time I have tried to distance my self from the seemingly empty abyss of sadness and hopelessness. Reading your post made me realize that I do not suffer alone.

It was in 1977 when my father was petitioned, it was in 1997 when a priority date was released. I should have immigrated with my family as a derivative beneficiary of my father‘s petition in 1999 but I aged out as the documents were processed. My father filed a petition in my behalf on 2000 as a son twenty one years old and above. In 2006 my family naturalized and became citizens.

Why must red tape interfere with the very spirit of the law?

Please keep me posted on the status of your cases, my mother is on her way to meet a lawyer and discuss the merits of my case.

[Munish]

Dear JakeCastle, :welcome:

I'm sorry to hear about your ordeal. It is so crazy that we have to go through this. I hope others in similar positions also join and post on this thread so we have a group of us. I am still debating Federal court action and it would be good if some kind of class action was possible. It sucks that the CSPA was enacted after your parent's petition became current as well. May be we could get our petitioners to lobby Congress to deal with this situation in the upcoming Comprehensive Immigration Reform legislation (that is if it gets passed this year).

It also sucks that student visas are not given dual intent visas like work visas so people could study in the USA while their petitions are pending.

Mun79

[JakeCastle]

Thanks for the warm welcome, I would post the case numbers of my dad's peition and the receipt number of the petition filed in my behalf but I'm afraid that wouldnt be wise. Please feel free to visit my friendster profile

just copy and paste on the address bar. Thanks again for your welcome and empathy.

[JakeCastle]

Dear JakeCastle, :welcome:

It sucks that the CSPA was enacted after your parent's petition became current as well. May be we could get our petitioners to lobby Congress to deal with this situation in the upcoming Comprehensive Immigration Reform legislation (that is if it gets passed this year).

It also sucks that student visas are not given dual intent visas like work visas so people could study in the USA while their petitions are pending.

Mun79

Sigh.. I actually did file for a student visa... the consul however after having realized that my entire family was living there plainly replied that its unlikely that I would return to my country of origin if he were to issue the visa. Sigh... yup it sucks alright first the red tape seperates me from my family and later on nips me in the butt by denying me the best education possible.

It's crazy all right... I can not even visit my grandma on the twilight of her life, nor pay my respects to my grandfather in his grave in Illinois, nor meet my own parents, sibling, aunt, and nephews since it's unlikely that I'll be granted a tourist visa... sigh...

I wonder if fifty of my american relatives sign a petition letter would help....

Yeah I hope more people would join this thread and do People Power.

[Susie]

Hi Jakecastle and :welcome:

Well all I can say is a cspa case will be sent certified mail today to the courts.

Once there is any news the case outcome will be posted until then I cannot say anymore, expcept, watch this space

[Munish]

Oh wow! I do hope it relates to sorting out the age out problem!

[Munish]

Just for anyone viewing this site in a similar situation, I thought you may like to view this. http://www.philippinenews.com/news/view_article.html?article_id=dfd7e87a02587cad2bc0b aaa2dc70b03. This is an example of someone who successfuly recaptured the priority date of their parents in the LA District Office of the USCIS, although it does not clarify if this involve an adjustment of status or direct visa petition.

[Munish]

I am starting a new thread "Dual Intent," which might be useful to Jakecastle and others in similar situations where you wish to apply for an non-immigration visa with a pending immigration visa.

[jayd_lowrider]

Hello All,

I am new here and I am interested to your post Mun79. Actually I am ageout myself and it's really frustrating on this CSPA cases.

When my family had a consulate interview, I went with them at the Consulate in Manila and told me that I age-out. It was painfully rejected. Consul's do not know the law. They are seeking advice from a consultant (who supposed to understand it) but it seems that they don't. What the consultant says its final.

Since, its just a waste of time and I will not wait for 8-15 years for F2B. I decided to settle down (get married) and apply elsewhere. I found myself here in a country down under with my wife. Obtaining a B1/B2 visa from Manila US Consulate is very frustrating as well because of Filipino reputation. But I was able to secure US visa here without hassle. I went in USA last X'mas and it was really a memorable one.

Now, I am planning to apply for H1B. For all of you(age-out) who are planning to go to US, you may opt to find another way. H1B will be a good candidate because of its "DUAL INTENT" nature. Consulate will not simply deny the visa because of insufficient binding ties. You will be denied if you don't have the skills for the job or you lack experience. An employer may file a GC for you which is much faster than family based petition.

Fortunately, IT is beginning to pickup and a lot of USA based companies are willing to sponsor they are all gearing up for 2008 quota that starts April 2007.

USA immigration law has a lot of flaw but looking for alternatives is far better than wait and sit. Its a good feeling if you obtain a GC on your own rather that be dependent on someone for it.

USCIS will not easily change its process, if it does that then it should grant to everyone which will make it more difficult because there are millions of children who age out.

I am not discouraging everyone but what can we do? My uncle also did send some appeal papers to USCIS but went back because USCIS said they are not responsible for it. I'm just saying, lets move on and find a better way. Some of my cousins (who ageout as well) are studying Nursing. Which is also good because if you pass CGFNS, then an employer will petition you for a GC already. There are many ways.... Just explore them all.

Cheers!
Jayd

[Susie]

Hi Jackcastle

Ref your quote


Why must red tape interfere with the very spirit of the law?


Can I have you permission to use this and give to the press, senators etc.,?? I true like this quote

[Munish]

Hi Jayd,

Thank you so much for getting in touch with me with your advice. I do agree with where you are coming from. I am looking into the H1-B route myself and thank God for its automatic dual-intent status. As long as my petition is pending I won't bother with any other non-immigrant visa unless I have a pressing need for it.

However, there is one important piece of legislation to keep your eye on that is expected to be enacted this year, known as the "Comprehensive Immigration Reform Act 2007." It is still being developed. I hope it contains a legislative fix of the CSPA problem since USCIS refuse to properly interpret it. Aside from that it is going to double the number of visas available to families so that the backlogs can reduce.

This is particularly good news if you are being sponsored on a F2B visa because in addition to the backlog, once your sponsoring Parent naturalize to US citizenship your are automatically converted to the F1 category (except if your cross-chargeability is the Phillippines because that line is longer so you can opt out). Combining the effects of the new legislation to reduce the backlogs and the shift to F1, a visa could be available as soon as your parents naturalize. The only exceptions may be Phillipines and Mexico where the lines are going back into the the early 1990s at the moment and will need more time to clear.

I totally agree with the H1-B strategy. For anyone who is not married in a similar position I would still have your parent file after entering, provided it is done within a year. That way you still have the option of the family-based immigration.

Jayd, I am definitely intent on coming to the USA on a H1-B if I am lucky enough to find a suitable employer. If that happens I will also be in a position and intend to rigorously pursue this CSPA claim in the Federal courts for a declaratory judgment interpreting the age out provision (but it is a big if at this point), unless I am beaten to it.

Thanks for the advice,

Mun79

[McSporran]

[QUOTE=Mun79]Hi Jayd,

I am looking into the H1-B route myself and thank God for its automatic dual-intent status. As long as my petition is pending I won't bother with any other non-immigrant visa unless I have a pressing need for it.

Hi Mun79,
Not that I'm the expert here - but H-1B is a non-immigrant visa! In itself it won't give you permenant residency. I think H-1B can only be held for a max of 6 years...only if the employer can get you through labor certification will this then be converted to an immigrant visa.
I don't mean to nit pick here - but I wanted to ensure you know the route you are pursuing...please double check with any employers that they will indeed pursue this for you, as you can imagine many won't (firstly because depending on the industry you are in it can be very hard to complete, and secondly once you hold this immigrant visa you would be free to leave that employer and go work for anyone).
Please forgive me if you already knew all this!! I wish you all the very best for whichever route you choose.

[Munish]

Yes, thanks McSporran

I am just posting this reply, not necessarily specifically to you, but generally for anyone with similar predicaments or who might find this useful.

Luckily I don't necessarily need an employer to sponsor me because I already have an approved family-based petition. The only issue is the wait time for my priority date become current and, specifically in my case, whether I can get round the wait time by recapturing an older priority date by using the CSPA 2002 (because I aged out of my parent's application in which I was a derivative benefiary). If this does not happen, I would have to wait just over three years (if the Comprehensive Immigration Refom Act is enacted this year and is properly and timely implemented by the USCIS and State Department).

The point I was making above is that while that application is pending it is difficult for me to obtain approval for a non-immigration visa as it is now presumed that my "immigrant intent" means I will not return to my home country after its expiration. Therefore, the burden of proving a return, in light of the pending "immigration visa" is higher.

"Dual intent" is particularly relevant to people like me who have a pending immigration visa. Showing or proving "dual intent" means I can enter the USA on a non-immigrant visa provided I prove, at the time of application, that my stay would only be temporary and I do nothing to pursue permanent residency. With a H1-B visa, dual intent is implied explicitly in the legislation and so the same burden of proof is not required.

I understand that dual intent is specifically authorised in the legislation for the following visas:
H-1B visas (for specialty workers);
O-1 visas (for workers who have extraordinary ability);
L-1 visas (for corporate transferrees);
K visas (for fiancees/spouses/minor children of U.S. citizens). and
V visas (for spouses/minor children of lawful permanent residents).

Naturally, if I find an employer willing to do an employment-based petition that solves all the problems I am having and our family can be reunited - but such a visa is unlikely for me at this stage of my life.

My best course of action is to be patient with the currently pending visa application, or otherwise have my Dad, as my petitioner, to take action in the Federal Courts to interpret INA section 203(h)(3), which protects people who have aged out of a previous application, or otherwise force the USCIS or Department of State to issue rules on it, which they have been required to do since this provision was introduced in 2002 but have still not done so.

[Munish]

PS, for anyone that is interested, there is a thread on the issue of applying for a non-immigrant visa while an immigrant visa is pending on the temporary visas forum, which I started last week. This cites relevant US Federal court decisions.

[jayd_lowrider]

MCSporran,

You are right H1B is not an immigrant visa. But its the mandatory step on obtaining GC. Some companies, do sponsor GC and you can pay for its cost. Its more expensive but faster. Another thing is that long wait for Labor Certification process is debunk now. USCIS implemented a new system called PERM. H1B can be extended more than 6 years provided you were sponsored by GC already. Whilst waiting for it, you can extend your stay.

While you have H1B you can transfer it and work to another company. Hassle might it seems but better. Most of the H1 people I know are working from a consultant position and transfer to more stable company and wait for it sponsor an GC. If you can build a bridge between you and your employer that is not impossible.

Cheers
Jayd

[Munish]

Thanks Jayd, except I dont think the H1-B is a "mandatory" step for a GC, but you're right in that most, if not all, employers will not sponsor anyone who they do not know in a professional capacity.

[JakeCastle]

Hi Jackcastle

Ref your quote


Why must red tape interfere with the very spirit of the law?


Can I have you permission to use this and give to the press, senators etc.,?? I true like this quote

Gladly by all means.

[JakeCastle]

IT is when the LAW fails that change must be enacted. IT is not just a right but the DUTY of the citizen to initiate positive change. Its sad to realize that the easy way out is to find another way. The CSPA was written in plain and simple language because it was intended to be interpreted expansively. It is sickening to realize how bureaucrats have perverted this piece of legislature to act as an instrument of retriction.

The question remains what can we do? Its sad to realize that one poster lost hope and begged to answer the question by saying "migrate to Australia so you can immigrate to the United State of America". It is true that many souls suffer because of the law's failings (or its interpretation of it) I do not believe that this is the permanent solution to the problem.

What can we do? Simple let the world know and continue to seek corrective measures, otherwise this shall continue.

Sussie I would like to help by any means necessary. Please help me edit my story and post the email addresses of senators and the press.

[Munish]

From an article that might be of interest. http://www.sunstar.com.ph/static/ceb/2007/02/26/bus/reeves.court.expands.child.status.protection.laws. html


Monday, February 26, 2007
Reeves: Court expands child status protection laws
By Robert L. Reeves

IN A recently published decision, the Board of Immigration Appeals (BIA) held that an immigration judge erred in narrowly restricting the application of the Child Status Protection Act (CSPA) to a foreign national who was in removal (deportation) proceedings.

The court found that the respondent in the case of “In re Rodolfo Avila-Perez, 24 I and N Dec. 78 (BIA 2007)” was still classifiable as a “child” of a United States (US) citizen under CSPA. The BIA determined that Avila-Perez could adjust status as an immediate relative of his US citizen mother, even though he had turned 21 years old almost 10 years before.

Pinoy Votes: Sun.Star Election 2007

As we have noted in previous articles, Congress enacted the Child Status Protection Act (CSPA) on Aug. 6, 2002 to provide relief to children who “age out” as a result of delays by the US Citizenship and Immigration Services (USCIS) in processing visa petitions.

The Immigration and Nationality Act (INA) defines a “child” as an unmarried individual under 21 years old. Prior to the CSPA, an application for permanent residency as a principal or derivative beneficiary child would be approved only if adjudicated prior to the child turning 21 years old. Upon turning 21, a child would “age out” and lose the preferential status of a child.

As the result of agency backlogs and delays, many children aged out before their cases were completed. Children who meet certain requirements in the CSPA are permitted to obtain permanent status even if they turn 21 years old.

The court found that the respondent in the case of “In re Rodolfo Avila-Perez” was a beneficiary of an I-130 immigrant visa petition filed by his US citizen mother in August 1996 when he was 20 years old. The former Immigration and Naturalization Service (INS) approved this visa petition in November 1996.

However, Avila-Perez did not file for adjustment of status based on this approved visa petition until October 2003, when he was 27 years old. He was placed in removal proceedings for overstaying his non-immigrant visa, and the immigration judge determined that he could not adjust his status an as “immediate relative” under section 2 of the CSPA because the respondent did not have an adjustment application filed “on or before” Aug. 6, 2002. While Mr. Avila-Perez was eligible to immigrate in the first-preference category (unmarried son over 21 years old), an immigrant visa was not yet available to him for immediate adjustment of status.

The BIA studied the statute and examined legislative history to ascertain whether Congress intended the requirement that all children adjusting status under section 8(1) of the CSPA have a pending adjustment application as of Aug. 6, 2002. Noting that child beneficiaries of non-immediate relative petitions (such as derivatives of employment-based visas) were required to utilize a mathematical formula to determine eligibility, among other issues, the BIA concluded that section 8(1) of the CSPA does not require an individual, whose visa petition was approved before Aug. 6, 2002, to have an adjustment application pending as of that date. The BIA remanded the case to the immigration judge to adjust the respondent’s status.

In sustaining the respondent’s appeal, the BIA’s decision also reflects that the USCIS’ policy memorandum issued Feb. 14, 2003, is erroneous. In that memorandum, the USCIS construed section 8(1) of the CSPA to require that the adjustment application must have been field on or before Aug. 6, 2002. While the BIA will adopt an agency’s policy where appropriate, in the case of “In re Rodolfo Avila-Perez,” the BIA determined that the USCIS erred in its interpretation of the CSPA’s requirements.

The CSPA is complex legislation that will almost certainly continue to be litigated to ensure that children will not be separated from their US citizen or immigrant parents. Individuals seeking legal representation in this matter should consult a knowledgeable and experienced immigration attorney.

(www.rreeves.com)

[mark]

IT is when the LAW fails that change must be enacted. IT is not just a right but the DUTY of the citizen to initiate positive change. Its sad to realize that the easy way out is to find another way. The CSPA was written in plain and simple language because it was intended to be interpreted expansively. It is sickening to realize how bureaucrats have perverted this piece of legislature to act as an instrument of retriction.

The question remains what can we do? Its sad to realize that one poster lost hope and begged to answer the question by saying "migrate to Australia so you can immigrate to the United State of America". It is true that many souls suffer because of the law's failings (or its interpretation of it) I do not believe that this is the permanent solution to the problem.

What can we do? Simple let the world know and continue to seek corrective measures, otherwise this shall continue.

Sussie I would like to help by any means necessary. Please help me edit my story and post the email addresses of senators and the press.

Hi

I know Susie is working so hard in the background every day and has just received an invitation to meet with the regional director who reports directly to Mel Martinez

Grass route footwork is needed and urge everyone to contact their local and national press to get each one's stroy out or if you see any immigration news being reported can you post in the Immigration news thread ? We should all then e-mail the paper to support each other

[Munish]

Thanks Mark (and Susie),

It's always good to know so many people are supporting our corner. Yes, I agree about getting the press involved. The issue is very hot at the moment and is something we need to do to make the situation is resolved.

[Susie]

Thanks Mark (and Susie),

It's always good to know so many people are supporting our corner. Yes, I agree about getting the press involved. The issue is very hot at the moment and is something we need to do to make the situation is resolved.


Hi

Yes agree

There will never a better time to get our voices heard, so please folkes do help all you can

[Susie]

Hi

I have mentioned in another thread that I have a meeting next Wednesday with the regional director who reports directly to Mel Matinez, so please watch this space

Mel Martinez, came to the US from Cuba so he if anyone should be sympatic to our causes

It is only a 30 min appointment therefore must make very good use of the time so am writing a letter to Mr Martinez with minutes of what we discuss asking he takes up our cause and request a followup meeting with him asap

Will report back as the issue of CSPA will be mentioned and the need for all children to be protected from aging out at 21 years. Also the USA spends tens of thousands of dollars education these children but never get benefit back if they have to leave the usa

To finish the letter I will add, A non nonsense, compassionate, fair immigration reform must be introducesd so why must red tape interfere with the spirt of the law?

[GKG]

Dear Sue and All

Thanks for all the inputs to keep this topic alive. We all need to stand together to keep our families as one unit.
I will be in USA from April-June 2007. I will talk to some lawyers - unless some law is passed by then!!!

I had two questions:

1. Shold I talk to some lawyer who has already successfully faught a similar case?
2. I have filed an I-130 for my dayghter last year in May. We received the receipt notice in Jaun 2006 but not the approval notice - should we wait for the approval notice before filing a case to allow her to retain the priority date of the original application?

Thanks

[Munish]

GKG,

I recommend you speak to a lawyer on this now and find one that spacializes on the CSPA (google should help you locate one). The are so many variables at play.

When did your daughter age out?

Did you mentioned the CSPA in your application and provide evidence of the original application?

If you daughter aged out before August 2002, it could be a problem, but if it was after that date I know people are getting the earlier priority date, but I also know the legislation is being inconsistently applied.

What is the current processing times you for daughter's application, or what is the service office dealing with it?

Is you daughter outside the USA or is this an adjustment of status application as well? If she is outside and the petition is approved with the Jan 2006 priority date instread of the earlier one, then the advice (or at least the advice that was given to me) is that you would have no grounds to appeal to an Immigration Judge or the Board of Administrative Appeals. You would have to seek a declaratory judgment in the Federal Courts (I was told this would cost many thousands of dollars so it is a lot to think about and could take up to hear before the final hearing).

What is holding me back is:

I do not have funds for this at the moment,
as you say the new legislation should come in, but you have to remember, if there is infighting in Congress (as happened with last year's version) it will be delayed until after the Presidential elections. The legislation at worst will significantly increase the number of family immigrant based petitions, which means the backlogged visas should move faster. Hopefully for people who are not able to benefit from the CSPA it means they should become current as soon as their parent naturalizes (because, except Mexico and Phillipines), the visa category moves from F2B to F1. At best the age out problems would be dealt with. A Bill should be introduced today or early next week so I am on the look out.
A miracle may happen, in that the USCIS may issue rules or the someone else be have brought a Federal court action.


However, a lawyer may be able to help you things before the final decision is made, which is why I recommend you find one ASAP and they can discuss with you all the above issues and be even have the power to talk with the USCIS insiders.

[JakeCastle]

Robert L. Reeves said I wont benefit
Carl Shusmaster said I could if I bring this into federal court

Now I dont know who to believe... or what a case in the federal court would entail. What should I do? Am curious if anyone would know how much this would cost and how long the proceedings will take? Thanks.

Oh here's Mr. Carl Shusterman's email:


Dear Mr. Castillo,

I believe that under Matter of Avila-Perez (See my latest newsletter.), you may be avail of the limited retroactivity provisions of CSPA. If we can get the CIS to accept the BIA's holding in Matter of Garcia (Same newsletter), you can utilize the 1978 priority date.

This may necessitate going to Federal Court....

Please see http://shusterman.com/intake.html

Sincerely yours,

Carl Shusterman

-----Original Message-----
From: Josue Castillo [mailto:JakeCastle@Gmail.com]
Sent: Tuesday, March 13, 2007 7:16 PM
To: carl.shusterman@gte.net
Subject: Comments for SHUSTERMAN'S IMMIGRATION UPDATE


____________________________________________

My aunt petitioned my dad back in 1978. My dad's petition was finally apporved with the priority date: August 1998, three months before my 21st birthday. I would have been an derivative of my father but aged out before the visa was available. My father filed an I-130 F2B peition on my behalf on November 10, 2001. Last year 2006 they naturalized and became U.S. citizens.
As a result my peition would be automatically converted to an F2A category.
In the Philippines, the backlog for much greater in this category.

I was wondering if I would benefit from the CSPA provisions. How if possible can I recapture the original priority date of my father which was August 1978?

[JakeCastle]

Would Does anyone know how I can get in touch with a certain Atty. Lawrence E. Rushton? I believe he was the lawyer who personally handled the Maria T. Garcia Case. Thanks and lets kee this thread alive.

[Munish]

Hi Jakecastle,

This is exactly what I was told by another reputable attorney who has written articles on the web. PM me if you want be to disclose his name to you. I do not wish to disclose it publicly.

He told me my best chance is to take action in the Federal courts. We do not have standing so we cannot personally take action as the beneficiaries. However petitioning parents can. The idea is that we issue a writ of mandamum forcing the USCIS to issue rules on the area or have the District court issue rules on their behalf. I asked about costs and it will cost thousands of dollars, and may even likely go beyond the $10,000.

Problem of Retroactivity and AOS

I have to admit though it could be a problem that your Dad's visa was approved in 2001. CSPA, section 8 state as follows:

The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of--
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such date."

Certainly CSPA, section 8(2) and (3) will not be beneficial to you in this case, and so the court will have to determine whether they will apply the case retroactively under section 8(1). The question is has a "final determination" been made on your case? In relation to your Dad's I-130 petition where he was originally a beneficiary, in all likelihood it had (but this is absolutely IMHO because this is unchartered territory, and it might be that Reeves was taking this approach, but I cannot talk for him).

How might Matter of Avila-Perez help? In that case the BIA was deciding on an ajustment of status (AOS) application. The beneficiary was already in the USA and you cannot make an AOS unless you are in the USA. The difference between 8(1) and 8(2), (3) is that 8(1) does not require the AOS to be "pending" on or before the CSPA enactment date of August 2002. This is what the Avila-Perez decision is about and so it means people are free to make an AOS where the possibility arises and thereafter benefit from the CSPA if possible. What you could do is go to the USA on a dual intent visa (e.g. H1-B), submit an AOS application and thereafter you would fall within section 8(1).

I know what you are thinking, what a crazy law? Well the dodgy language of the CSPA has resulted in this absurd situation, where it makes a difference as to whether you are in the USA or outside the USA, when the applications were date, etc, on how you will be treated. In the case where you are outside the USA and cannot make an AOS, Federal action is the only remedy (according to or lawyers). Even though I am inclined to opine with Reeves rather than Shusterman, this is IMHO as many lawyers are going to have divergent opinions on this issue, which is exactly the problem with the CSPA. It is made only for lawyers to benefit because they can get the fees to help clear up the ambiguities and contradictions. At the end of the day, none of us are Federal court judges so who knows what any potential judgment could be.

My attorney advised me the alternative to Federal action is to come the USA on a visa such as H1-B and then submit an AOS, but towards the end of the validity of the visa. Then once I am subject to deportation proceedings, appeal to the immigration judge and then to the BIA if necessary. Again, CRAZY!!!!!

Benefit for Philippino Beneficiaries under CSPA, section 6(2)

Because you have the unique backlog problem, namely the line is longer for Philippino cross-chargeability beneficiaries with a naturalised petitioner rather than a permanent resident petitioner, CSPA, section 6, entitles you to "opt out" of the being transferred to the naturalized F1 preference category and you can remain in the F2B preference category. Before anything else such as court action ensure you are remain under the F2B line and not F1. Here is section 6(1) and (2).

SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS AND DAUGHTERS OF NATURALIZED CITIZENS.

Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
`(2) EXCEPTION- Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family- sponsored immigrant shall be made as if such naturalization had not taken place.

Final Remarks

Sorry for being negative with regard to how I see CSPA, section 8, but it is IMHO. I hope the CSPA, section 6, benefit helps.

Maybe the issue and problem of the retroactivity is something Susie could bring up with Senator Martinez. The bottom line the CSPA is not even half-baked and that needs to be on the Comprehensive Immigration Reform agenda. IMHO, the Comprehensive Immigration Reform Bill has to:


Remove the retroactivity provisions of section 8;
Remove the requirement to seek permanent residence within one year under section 3 (INA section 203(h) because as a result of it so many people have lost out (I found out about the CSPA purely as a fluke within the one year window and was lucky my Dad filed); and
As Susie suggested, rewrite CSPA section 3(c) (INA section 203(h)(c)) so the "age out" provisions are not prevented from being applied to derivative beneficiaries as is happening at the moment, despite the already clear reference to it in the legislation (although this would be unnecessary if the USCIS properly interpreted the law).


I will be somewhat quiet at the moment as I have job interview to prepare for but I think everyone can agree this issue needs continued action.

[JakeCastle]

This is all nuts! Thanks a lot Mun79. You've been most helpful. Good luck to your endeavors. Crazy world we live in.

[Susie]

Hi All

Well I can now reveal there is another cspa in the courts! and will update this thread with the outcome, SO WATCH THIS SPACE

Copies of this complaint are being sent to Charles Wheeler who wrote a book on CSPA , odbudsman . AILA amongst others as such an interesting case

It maybe beneficial if enough victims come forward and have a class action complaint (law suit) then the costs could be shared.

Also the meeting with Sen Martinez regional director went extremley well today.

I said the CSPA is badly written and needs a leglaslative fix and that many children are still aging out due to errors, delays, mis interpretation and lack of visa numbers available.

I mentioned the one phrase in the CSPA that states #The CSPA should be interpred expansively# Told him in lay mans terms this means, common sense and compassion to unite families and in other words USE DISCRECTION

It is my greatest wish to have an amendment to the CSPA to protect all children from aging out, whether illegal or legal at the end of the day they had no choice as to where their parents brought them to live and should be able to choose to stay in the USA or go back to their birth country, subject to good moral character

[Susie]

If anyone would like the contact details for Charles Wheeler please pm me. He wrote a book on the CSPA, which I bought although it really did not tell anything I did not already know

[forbor4c1980]

Hey Susie. I would like the contact information of Charles Wheeler! I know it has been a while but have you (or anyone else) gotten a chance to think about my particular situation and whether or not I would be eligble to adjust my status under the CSPA? I'll just quote myself below to recap:

I'm a Filipino citizen born in 1980. My sister who was a USC petitioned my parents and I in 1996. Our priority date was Sep 1996. Once my Mom obtained her green card she filed another petition for me. My priority date for that I-130 is Jan 1998. I turned 21 in 2001 and subsequently aged out. Now obviously I'm still considered an adult despite the mathematical formulas used to determine my "USCIS" age. But from what I have been reading, isn't my "original priority date" Sept 1996 (the priority date of the 4th based preference petition filed on my behalf by my sister) and aren't I under the 2B based category? The current number for the 2B category is Oct 1996. Thanks everyone!

On another note, I'm having some trouble with the lawyer that has taken care of my entire family's past immigration applications. My mother and I have repeatedly asked the lawyer to give us a copy of the petition that my sister filed for my parents but he refuses to return any of my calls. Does my family have any legal right to these documents? Do you think the USCIS would have a copy of the petition? I really need a copy so I can determine the exact priority date on my parents' petitions. Thanks again, guys!

[Susie]

Hey Susie. I would like the contact information of Charles Wheeler! I know it has been a while but have you (or anyone else) gotten a chance to think about my particular situation and whether or not I would be eligble to adjust my status under the CSPA? I'll just quote myself below to recap:



On another note, I'm having some trouble with the lawyer that has taken care of my entire family's past immigration applications. My mother and I have repeatedly asked the lawyer to give us a copy of the petition that my sister filed for my parents but he refuses to return any of my calls. Does my family have any legal right to these documents? Do you think the USCIS would have a copy of the petition? I really need a copy so I can determine the exact priority date on my parents' petitions. Thanks again, guys!


Hi

I am would have thought he had a duty to give you a copy of the files before they were sent off.

The uscis would have a copy of the petition best call the 1-800 and ask how you go about getting a copy of your file

I will pm the tele number when I have it to hand

[Munish]

As for your lawyer, look up his bio on his website and find in which state he is barred. Then go to the website for the bar association of that particular state and look for the complaints procedures or options you have to force him to give you back your papers. I do not know the rules of professional conduct for every state, but do know by not returning your calls and failing to give back your papers he is 99% likely breaking his rules of professional conduct provided all fees are settled.

[Munish]

I'm a Filipino citizen born in 1980. My sister who was a USC petitioned my parents and I in 1996. Our priority date was Sep 1996. Once my Mom obtained her green card she filed another petition for me. My priority date for that I-130 is Jan 1998. I turned 21 in 2001 and subsequently aged out. Now obviously I'm still considered an adult despite the mathematical formulas used to determine my "USCIS" age. But from what I have been reading, isn't my "original priority date" Sept 1996 (the priority date of the 4th based preference petition filed on my behalf by my sister) and aren't I under the 2B based category? The current number for the 2B category is Oct 1996. Thanks everyone!

On your current petition, has your Mother naturalized. If so make sure you request to maintain your status under category F2B if you have been moved to F1 (because that has a longer line for Phillipino cross-chargeability) and you are entitled to do so under CSPA, section 6(2) (see my above posting in response to Jakecastle).

Also curious. Did your sister petition you separately and your Mother separately or were you a derivative on your Mother's petition (in which case I am not sure why you were not given a green card in 1998 as well as a derivative as you aged out in 2001)?

[Munish]

The uscis would have a copy of the petition best call the 1-800 and ask how you go about getting a copy of your file

Make sure you have your EAC number (receipt number) to hand when you call the USCIS about the paperwork, but bear in mind I think (not certain) they are only authorized to give paperwork or information to the petitioner and not to the beneficiary.

Also do you have any paperwork from the National Visa Center in Portsmouth (which has its own file number)? They should have sent you a notice directly once the USCIS approved your petition and forwarded your a copy of your file to them.

[Munish]

forbor4c1980,

Just wandering if you were succssful in recovering the documents you were chasing and if you got a new lawyer.

[forbor4c1980]

On your current petition, has your Mother naturalized. If so make sure you request to maintain your status under category F2B if you have been moved to F1 (because that has a longer line for Phillipino cross-chargeability) and you are entitled to do so under CSPA, section 6(2) (see my above posting in response to Jakecastle).

Also curious. Did your sister petition you separately and your Mother separately or were you a derivative on your Mother's petition (in which case I am not sure why you were not given a green card in 1998 as well as a derivative as you aged out in 2001)?

First off thanks Mun79 and Susie for responding to my posts! Sorry I haven't responded to your responses. I've been pretty busy with school. Mun79, my USC sister only petitioned my Mom (I had thought that she had filed one for me too but I was mistaken). So yeah, I guess that made me a derivative on my Mother's petition. Also, my Mom hasn't naturalized. One of the first things my lawyer advised my parents to do was not apply for citizenship so I still am in the F2B category.

As far as my quest to retrieve my papers, I sent yet another email to my lawyer and still no response. I am probably going to give him a call next week but I've just been so busy trying to juggle so many things. And thanks Susie if you can come up with that USCIS number. I wish I could be of some help to the others on this thread. Hopefully there will be some questions I can help answer!

[Susie]

Hi

The Strive act may help other age outs, as a result of disaster or emerfency.

I would consider that if any child ages out it could be intrepreted as an emergency or their petitioner passes away !

Good news as at least they are beging to at least acknowledge there is a problem with the CSPA



SEC. 537. AGE-OUT PROTECTION.

In administering the immigration laws, the Secretary and the Attorney General may grant any application or benefit notwithstanding the applicant or beneficiary (including a derivative beneficiary of the applicant or beneficiary) reaching an age that would render the alien ineligible for the benefit sought, if the alien's failure to meet the age requirement occurred as a direct result of a major disaster or emergency.

[Munish]

Mun79, my USC sister only petitioned my Mom (I had thought that she had filed one for me too but I was mistaken). So yeah, I guess that made me a derivative on my Mother's petition.

Did your Mother add you to her name when she was sponsored by your sister? You can only a derivative beneficiary if she (or rather your sister) added you as one on the original form. If not sure please check with her. Also you might have a problem with retroactvity (section 8 of the CSPA) if you aged before August 2002 and if your Mother's petition (in which you were a derivative beneficiary) was already approved before that date as well. Please double check all dates.

Also, my Mom hasn't naturalized. One of the first things my lawyer advised my parents to do was not apply for citizenship so I still am in the F2B category.

Get a new lawyer fast!!!!! He clearly does not know the CSPA. Section 6 allows you parents to naturalize and for you to remain on F2B status. Please check my earlier post. You have to write to the State department or USCIS (I don't know the procedures) and request you remain and F2B and are not moved to F1 after they naturalize

As far as my quest to retrieve my papers, I sent yet another email to my lawyer and still no response. I am probably going to give him a call next week but I've just been so busy trying to juggle so many things.

This would drive me nuts!!!!!!!!!!

And thanks Susie if you can come up with that USCIS number.

Your Mother can obtain this simply by calling the USCIS and explaining she has lost the paperwork. My Dad lost by USCIS number and they were able to retrieve it after being asked questions about our application from their computer systems. She can also request for duplicate paperwork. Also get the paperwork from the NVC in the same way. No one other than the petitioner is able to access the USCIS number this way.

I wish I could be of some help to the others on this thread. Hopefully there will be some questions I can help answer!

Yes there will! :)

[j0emV]

Actually, your name does not have to actually be on the form to be considered a derivative beneficiary. I copied that somewhere out of the INA but as long as you're the persons child, you're considered a derivative regardless if you're on their petition or not.

[Munish]

Oh great news! Thanks J0emV.

However, I think there cannot be derivative beneficiaries for "immediate relative" applications. Does anyone know the answer to this? I hope I am wrong. forbor4c1980, I am right in thinking your parents were "immediate relatives" of your sister right?

[forbor4c1980]

Oh great news! Thanks J0emV.

However, I think there cannot be derivative beneficiaries for "immediate relative" applications. Does anyone know the answer to this? I hope I am wrong. forbor4c1980, I am right in thinking your parents were "immediate relatives" of your sister right?

In the Maria Garcia case was Garcia's mother an immediate relative of her sister? I would assume that my parents are "immediate relatives" of my sister. I found this a while back when I started to hear more about all the appeals surrounding the CSPA. Perhaps this could shed some light on the situation?

http://foia.state.gov/masterdocs/09FAM/0942031N.PDF

Just some basic definitions about the common terminology you run into when dealing with CSPA cases...I found it helpful...what do the rest of you think?

[v2002]

Originally Posted by forbor4c1980
I'm a Filipino citizen born in 1980. My sister who was a USC petitioned my parents and I in 1996. Our priority date was Sep 1996.
***Upto this STEP YOU ARE NO BODY.

Once my Mom obtained her green card she filed another petition for me. My priority date for that I-130 is Jan 1998. I turned 21 in 2001 and subsequently aged out.
** THIS IS WHEN YOUR PD starts....... and you did age aout before CSPA came on place.
Now obviously I'm still considered an adult despite the mathematical formulas used to determine my "USCIS" age.
But from what I have been reading, isn't my "original priority date" Sept 1996 (the priority date of the 4th based preference petition filed on my behalf by my sister) and aren't I under the 2B based category? The current number for the 2B category is Oct 1996.
NO YOUR SISTER DID NOT FILE PETITION FOR YOU. SO your original P.date is When your MOM filed for you.

Now I also read somewhere that your moms lawer told her not to become citizen..... absolutely wrong if you are married or not your application can be valid ONLY if your mother becomes citizen as a USC she can file for you.

By the way one is a defined as a "derivative beneficiaries " for immigration but to avail that an application have to be in place.
In your case the application was in place BUT YOU AGED OUT.
Regarding your paperwork..... If you hire a good lawer and your mother sign G28 with him/her the OLD LAWER WILL HAVE TO pass off all the old information to your new lawer .( the only catch here is normally after the case id approved normal practice to keep files is 7 years).

[forbor4c1980]

NO YOUR SISTER DID NOT FILE PETITION FOR YOU. SO your original P.date is When your MOM filed for you.

I guess this is the issue at hand: through an expansive interpretation of the CSPA can I, as a derivative benificiary of my mother, RECAPTURE Her priority date? Can an Unmarried Child of a LPR who has Aged out despite the formula set down by the CSPA still benefit in some way from the act?

[forbor4c1980]

:( I think you might be right Mun79. There are no derivative beneficiaries of immediate relative petitions...at least that's what all the links I've just visited on the web say. But on the one hand this doesn't make a whole lot of sense given all the recent litigation surrounding the CSPA. Is there something about these cases (particulary the Maria Garcia case) that I'm missing?

Here's just one of the links:

http://immigration.lawyers.com/ask-a-lawyer/Derivative-Beneficiaries-of-Family-Based-Petitions-5745.html

[v2002]

I guess this is the issue at hand: through an expansive interpretation of the CSPA can I, as a derivative benificiary of my mother, RECAPTURE Her priority date? Can an Unmarried Child of a LPR who has Aged out despite the formula set down by the CSPA still benefit in some way from the act?

:D :D :D :D YES 100% you can give it a try.......I have seen many lawers twist the issue and WIN. Certainly you can file a petition BUT also have your mom become a CITIZEN as that WILL HELP YOU A LOT, the reason I say so is that under current laws a LPR can file for I-130 for unmarried sons or daughters but there is a long wait.However if your mom becomes a USC she can continue your application evan if you get married. Also have your sister file a petion for you.

[forbor4c1980]

:D :D :D :D YES 100% you can give it a try.......I have seen many lawers twist the issue and WIN. Certainly you can file a petition BUT also have your mom become a CITIZEN as that WILL HELP YOU A LOT, the reason I say so is that under current laws a LPR can file for I-130 for unmarried sons or daughters but there is a long wait.However if your mom becomes a USC she can continue your application evan if you get married. Also have your sister file a petion for you.

Actually since I'm from the Philippines and subsequently subject to a numerical cap the wait is longer if my mom becomes a USC. But then again the CSPA allows me to stay in the F2B category so it's a non-issue. And I'm in no particular rush to get married. :D

[v2002]

Actually since I'm from the Philippines and subsequently subject to a numerical cap the wait is longer if my mom becomes a USC.:D
Who gave you this CRAP ? that the wait is longer ?
USC petitions are the TOP MOST priority for processing...under the family reunion act.
Infact your mom can get more symphthy through many offices if SHE IS A USC spl. from your senetor and congressmens office. and your mom can also petion to EXPEDITE your case.

[forbor4c1980]

Who gave you this CRAP ? that the wait is longer ?
USC petitions are the TOP MOST priority for processing...under the family reunion act.
Infact your mom can get more symphthy through many offices if SHE IS A USC spl. from your senetor and congressmens office. and your mom can also petion to EXPEDITE your case.

Sorry am I missing something here? In the April visa bulletin, the 1st preference category is processing dates in Feb 22, 1992. The 2FB is October 1, 1996. Also, when you talk about the "family reunion act" are you referring to the LIFE act? I know for sure that I'm not eligble for that.

[Munish]

:( I think you might be right Mun79. There are no derivative beneficiaries of immediate relative petitions...at least that's what all the links I've just visited on the web say. But on the one hand this doesn't make a whole lot of sense given all the recent litigation surrounding the CSPA. Is there something about these cases (particulary the Maria Garcia case) that I'm missing?

Here's just one of the links:

http://immigration.lawyers.com/ask-a-lawyer/Derivative-Beneficiaries-of-Family-Based-Petitions-5745.html

Maria Garcia did not involve immediate relatives. Maria's Mother was originally sponsored by the Mother's sister (Maria's Auntie). Therefore, Maria was a derivative beneficiary on an F4 visa application, and F4 is not "immediate relative" status.

In your case, your sister petitioned your Mother, which is "immediate relative."

Hope this clarifies that issue.

[v2002]

Sorry am I missing something here? In the April visa bulletin, the 1st preference category is processing dates in Feb 22, 1992. The 2FB is October 1, 1996. Also, when you talk about the "family reunion act" are you referring to the LIFE act? I know for sure that I'm not eligble for that.
If you were physically in US as on dec 2000 you could have benifited from LIFE act....I really dont know what kind of lawers you had who gave all wrong advice to your mom and sister... and also you could have benifited IF your mom was a USC.
But I dont know your entire case history .. all I can say is "You need to reach out to a good lawer" and let him take care of your situation ... moreover USC is always a BIG benifit. and if you are already in US just now don't evan bother to move out just stay put and follow up your options WITH GOOD LAWER.

[Munish]

Generally the USC lines are shorter, but exceptionally for Phillipine beneficiaries F1 is longer than F2B. But this is irrelevant with CSPA, section 6 in any case. Bottom line, get your Parents to naturalize and opt out of the F1 status to remain in F2B.

As for V2002's posting, she'll be able to clarify what the Family Reunion Act is about.

[v2002]

Maria Garcia did not involve immediate relatives. Maria's Mother was originally sponsored by the Mother's sister (Maria's Auntie). Therefore, Maria was a derivative beneficiary on an F4 visa application, and F4 is not "immediate relative" status.

In your case, your sister petitioned your Mother, which is "immediate relative."
Hope this clarifies that issue.
_______

MUN79 this is EXACTLY why HIS case can be SIMILAR to MG case.... see his sister petioned for MOM .... and a lawer can easily twist it that as a MINOR child of his mother HE DOES qualify to be a "derivative beneficiary".The plus point to exploit here is that HIS MOM DID FILE FOR HIM immediately and HE WAS A MINOR AT THAT TIME.

Mario was able to win due to GOOD REPRESENTAION and twisting the law ... as I look at this case ... IF he has a GOOD LAWER he can WIN TOO.

[Munish]

I totally agree about finding a good lawyer. And completely flabargasted with that lawyer you had. Is there a link to the MG case, would like to read it as I was not aware of it. Thanks

[v2002]

Generally the USC lines are shorter, but exceptionally for Phillipine beneficiaries F1 is longer than F2B. But this is irrelevant with CSPA, section 6 in any case. Bottom line, get your Parents to naturalize and opt out of the F1 status to remain in F2B.

Where are you NOW? IN US or out of USA?Were you here in dec 2000 ?
OOOOOOPS MUN I know you are in UK :notworthy: My Q was FOR (F):D

[forbor4c1980]

If you were physically in US as on dec 2000 you could have benifited from LIFE act....I really dont know what kind of lawers you had who gave all wrong advice to your mom and sister... and also you could have benifited IF your mom was a USC.
But I dont know your entire case history .. all I can say is "You need to reach out to a good lawer" and let him take care of your situation ... moreover USC is always a BIG benifit. and if you are already in US just now don't evan bother to move out just stay put and follow up your options WITH GOOD LAWER.

We did consult my eligibility for LIFE and it turned out that I had not waited long enough for my priority date to become current. The LIFE act specifically says that if the petition for a child has been approved, he or she must have been waiting at least 3 years for a visa number. I filed on Jan 15, 1998. LIFE was enacted on Dec 21, 2000. YES I KNOW: I missed the cut-off by just three weeks! Those are the breaks... :(

[Munish]

I am in the UK. I was in the USA from Sept 2002 until August 2004 on a student visa. Back home now sorting a lot of stuff out in my personal life.

You'll see my first thread is on this post, which explains more about my immigration situation.

[v2002]

We did consult my eligibility for LIFE and it turned out that I had not waited long enough for my priority date to become current. The LIFE act specifically says that if the petition for a child has been approved, he or she must have been waiting at least 3 years for a visa number. I filed on Jan 15, 1998. LIFE was enacted on Dec 21, 2000. YES I KNOW: I missed the cut-off by just three weeks! Those are the breaks... :(

WRONG INFORMATION GIVEN TO YOU AGAIN......... YOU did benifit form the
act under a diff, cat .... where your sister filed the case for your mom ... and as a MINOR you were presumed to be the benificiary ... SEE we can debate this all day long with no outcome ...Only thing I have to say is IF YOU ARE CURRENTLY IN USA ... stay PUT and explore with a GOOD immigration lawer. You will be surprised what they can do.
Since you do have a USC to back you and your mom is an LPR ... you also qualify to get case expedited under many circumstances ..... family reunion... and hardship due to USCIS long waiting that put you under "ageout" and thus amounted to distress and hardship to you mom.
Bottom line GET A GOOD ATTORNEY " not everything is lost in your case"
Good Luck

[forbor4c1980]

MUN79 this is EXACTLY why HIS case can be SIMILAR to MG case.... see his sister petioned for MOM .... and a lawer can easily twist it that as a MINOR child of his mother HE DOES qualify to be a "derivative beneficiary".The plus point to exploit here is that HIS MOM DID FILE FOR HIM immediately and HE WAS A MINOR AT THAT TIME.

Mario was able to win due to GOOD REPRESENTAION and twisting the law ... as I look at this case ... IF he has a GOOD LAWER he can WIN TOO.

I appreciate the clarification and your optimism, v2002. I called my lawyer back in Feb and told him about the recent developments surrounding the CSPA and he told me verbatim, "it doesn't look like we have a case." It was then that I started to do more research (being the stubborn ******* that I am) and began bugging him about getting my papers back. So I'm not sure what to do. I was thinking of consulting with a lawyer that has had some success in interpreting the CSPA expansively, but I don't want to go to one before getting ALL the paperwork back (all I really need is the notice of action that says that my parents' petitions were approved).

[v2002]

I appreciate the clarification and your optimism, v2002. I called my lawyer back in Feb and told him about the recent developments surrounding the CSPA and he told me verbatim, "it doesn't look like we have a case." It was then that I started to do more research (being the stubborn ******* that I am) and began bugging him about getting my papers back. So I'm not sure what to do. I was thinking of consulting with a lawyer that has had some success in interpreting the CSPA expansively, but I don't want to go to one before getting ALL the paperwork back (all I really need is the notice of action that says that my parents' petitions were approved).
The only person Who can take the file from your old lawer is "your mom" who can physically go to his office and demand to get her papers."its her right"
The second person who can get ALL YOUR PRIOR PAPERS IS YOUR new ATTORNEY WHO have a G28 signed by your MOM ..... By law your old attorney MUST provide him all papers.
If you are in USA... try to KEEP your cool and visit your attorneys office with your MOM. Your sister can Request your MOMS FILE TOO from the lawer as she was the ONE to pay him.

[forbor4c1980]

The only person Who can take the file from your old lawer is "your mom" who can physically go to his office and demand to get her papers."its her right"
The second person who can get ALL YOUR PRIOR PAPERS IS YOUR new ATTORNEY WHO have a G28 signed by your MOM ..... By law your old attorney MUST provide him all papers.
If you are in USA... try to KEEP your cool and visit your attorneys office with your MOM. Your sister can Request your MOMS FILE TOO from the lawer as she was the ONE to pay him.

This is very helpful, v2002! Thanks! Maybe I should hire a new attorney. Oh and I am in the USA. Been here since 1985. I'm 26 now.

[v2002]

This is very helpful, v2002! Thanks! Maybe I should hire a new attorney. Oh and I am in the USA. Been here since 1985. I'm 26 now.
:mad: :mad: :mad: :mad: :mad: :eek: :eek: :eek: :eek: 1985????:eek: :eek: :eek: :eek: :eek: How come you dont have a status as LPR under the immigration changes in 1996 ?????2000????/:D :D :D :D Now I know for SURE you HAD A LOUSY LAWER to BEGIN WITH.
Good Luck now I have to go ,Feel free to post your concerns Glad to help anytime .. also read the family act with a COOLAID in hand.;) You might find something VERY intresting.:D

[Munish]

:mad: :mad: :mad: :mad: :mad: :eek: :eek: :eek: :eek: 1985????:eek: :eek: :eek: :eek: :eek: How come you dont have a status as LPR under the immigration changes in 1996 ?????2000????/:D :D :D :D Now I know for SURE you HAD A LOUSY LAWER to BEGIN WITH.

Nuff said!

[forbor4c1980]

Apparently so...can anybody supply a link to the LIFE act? I can't seem to find a full text copy of it online!

[v2002]

Apparently so...can anybody supply a link to the LIFE act? I can't seem to find a full text copy of it online!
I will post it later for you here or send you vai PM tonight.

[forbor4c1980]

I will post it later for you here or send you vai PM tonight.

Oops. Nevermind. I think I found it. Thanks anyway! Is this it?

http://149.101.23.2/graphics/lawsregs/LIFEAct.htm#anchor184026

With USCIS redesigning their website, things are so hard to find now...

[Susie]

Hi

Check out cspa cases


www.tomesparza.com/documents/NewCasesExpandCSPA.doc

Interpretation Of CSPA
by Charles Wheeler

In June 2006 the Board of Immigration Appeals (BIA) issued two unpublished decisions interpreting different provisions of the Child Status Protection Act (CSPA). Just prior to that a U.S. district court in California issued an important decision relating to a separate CSPA provision. These administrative and judicial decisions add to the growing body of case law stemming from some of the more controversial and ambiguous portions of this statute. These latest decisions are welcome news to practitioners who have been struggling with certain sections of the CSPA. This article will summarize these four recent decisions and comment on their significance.

No Final Determination by August 6, 2002. Section 8 of the CSPA states that the law applies to I-130/I-140 petitions, adjustment of status applications, and immigrant visa applications pending before the U.S. Citizenship and Immigration Services (USCIS) or Department of State (DOS) on August 6, 2002, the date the law took effect. According to the agencies' interpretation, the CSPA also applies to I-130/I-140 petitions approved before August 6, 2002, if the beneficiary aged out on or after that date.

For those whose I-130/I-140 petition was approved before August 6, 2002, but who filed an immigrant visa or adjustment of status application before that date, the CSPA will apply provided there has been no final determination on the immigrant visa or adjustment of status application before August 6, 2002. According to the USCIS and DOS, a final determination for purposes of an adjustment of status application means approval or denial by USCIS or the Executive Office for Immigration Review (EOIR). [1] The Ninth Circuit Court of Appeals, in Padash v. INS, subsequently gave that term a more expansive meaning by including cases decided by an Article III court, such as the federal court of appeals. [2] At least in that circuit, applications that were initially denied by the agency before August 6, 2002 but were on judicial appeal on that date have not received a final determination.

Left unanswered was whether the term would also include an application for adjustment of status that was initially denied by the Immigration and Naturalization Service (INS) before August 6, 2002, renewed before an immigration judge in removal proceedings, and pending before that court on or after that date. [3] The BIA found that it did.

In that case the respondent was a derivative child who had been denied adjustment of status by the INS on April 19, 2002 because she had turned 21 two and a half months earlier. She was subsequently placed into removal proceedings. The DHS contended that she had received a final determination on her adjustment application prior to the effective date of the CSPA, while the respondent argued that the renewal of her application in proceedings after August 6, 2002 qualified her for protection under section 8 of the statute. Relying on the language and reasoning in Padash, the BIA agreed with the respondent's argument and made a further determination that she had not aged out. It remanded the case to the immigration court for re-adjudication of the applicant's application for adjustment of status. In re Ki Na Kim, No. A-78-706-954 (6/7/06).

Retention of Priority Date for Age-Outs. When a lawful permanent resident's (LPR's) child ages out of the second preference 2A category, after taking into account the CSPA's age-out protections, the child automatically converts to the 2B category. When the LPR's derivative child ages out and is no longer considered a derivative, after taking into account the CSPA's age-out protections, the LPR parent must file a separate I-130 on the child's behalf. The child automatically converts from the second preference 2A category to the 2B category and is able to retain the original priority date that was obtained for the first I-130. [4]

But derivative children who age out in the first, third, or fourth preference categories, after applying the CSPA principles, will have to wait until their parent becomes an LPR and that parent files a new I-130 petition on their behalf. This would be a second preference 2B category petition. The same is true if the principal beneficiary is a child/son/daughter of an LPR who has a derivative child and the derivative child ages out. One of the biggest unanswered questions is whether the CSPA allows the aged-out child to retain the original priority date of the I-130 petition that was filed on behalf of their parent. If so, most of these aged-out children would be current in the 2B category and would be eligible to adjust status or proceed with consular processing. If not, they would be facing another multi-year backlog.

Although the USCIS has not issued any definitive memo addressing this issue, the agency has taken the position that these aged-out children may not retain the original priority date. According to the USCIS, the CSPA did not change the existing law in this situation; it simply formalized the policy concerning when a beneficiary converts automatically from the second preference 2A into the 2B category. The statute now states that the child's "petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition." [5] All parties would agree that when the 2A child of an LPR ages out, the LPR parent petitioner does not need to file a separate I-130 petition. The child automatically converts to the 2B category beneficiary and retains the original priority date.

But the USCIS does not apply that principle to derivatives in the first, third, or fourth preference categories, or to the derivatives of a child/son/daughter of an LPR in the second preference category. According to the agency, these derivatives do not automatically convert to any family-based category when they age out of derivative status. Therefore, when their parent immigrates or adjusts to LPR status and files a subsequent I-130 petition on their behalf, they acquire a new priority date.

The argument in favor of priority date retention also rests on the plain language of section 3 of the CSPA. The provision setting forth automatic conversion and retention of priority date makes reference to applications filed under both INA § 203(a)(2)(A) and INA § 203(d). [6] The first statutory provision - INA § 203(a)(2)(A) - relates to second preference 2A children aging out and moving into the 2B category. But the second statutory provision - INA § 203(d) - refers to derivatives in all the family-based preference categories. Therefore, it appears that Congress intended to include other derivatives in this paragraph.

In another unpublished decision the BIA recently held that the CSPA allows for priority date retention when the LPR parent files a new I-130 for the once-derivative and now aged-out child. The respondent in this case was a derivative child in the fourth preference category who aged out. When the child's mother immigrated, she filed a new I-130 for the 22-year-old daughter in the second preference 2B category. The BIA held that "where an alien was classified as a derivative beneficiary of the original petition, the 'appropriate category' for purposes of section 203(h) is that which applies to the 'aged-out' derivative vis-a-vis the principal beneficiary of the original petition." In this case the BIA held that the aged-out child automatically converted to the second preference 2B category, since she was still the unmarried child of the LPR parent (the principal beneficiary). She was able to retain the priority date of the original fourth preference petition, making her current in the 2B category and eligible to file for adjustment of status. In re: Maria T. Garcia, No. A-79-001-587 (6/16/06).

One-Year Filing Requirement. The CSPA requires applicants who are retaining "child" status in the second preference 2A category or as derivatives to seek permanent resident status within one year of the visa becoming available. [7] The USCIS has defined the term "sought to acquire" as filing for adjustment of status. [8] The DOS has also defined what that means for those who are consular processing. Submitting a completed DS-230 Part 1, application for immigrant visa, within one year of the visa becoming available satisfies that requirement. For older cases that pre-date the DS-230 Part 1, filing one of the predecessor forms (OF-230 Part 1 or OF-179) will also suffice. The DOS has stated that filing the Form I-824, Application for Action on an Approved Application or Petition, will also satisfy the requirement to seek LPR status. [9]

The BIA, in an unpublished decision dated December 20, 2004, has interpreted the phrase "sought to acquire" LPR status to include actions other than simply filing the above-referenced applications. In that case, the BIA found that seeking the assistance of an attorney within that one-year window to prepare the application for adjustment of status satisfied the requirement. [10] The BIA found that the statutory language "sought to acquire" is broader than "filed," and includes acts that "try to acquire or gain" or "make an attempt to get or obtain."

But despite all of this analysis and interpretive memos, one fundamental question remained: Who is affected by the one-year filing requirement? Does it apply to all persons seeking protection under section 3 of the CSPA or only to those who aged-out prior to filing for adjustment of status? In other words, if the child's visa became current prior to turning 21 and he or she filed for adjustment of status prior to turning 21 but more than one year after the visa became current, can he or she still be covered by CSPA's age-out protections?

A U.S. district court in California appears to interpret the one-year filing requirement as applying only to applicants who need to use the age-reduction principles added to INA § 203(h)(1)(A) by the CSPA because they are over 21 at the time of filing for adjustment of status. [11] In the case before the court, the derivative child of an employment-based petition filed for adjustment of status prior to turning 21 but more than one year after the visa became current. The court found that she "expressly" satisfied the definition of child under INA § 101(b)(1)(A) at the time of filing for adjustment of status, and thus did not need to meet the one-year filing requirement of INA § 203(h)(1)(A). It is unfortunate that the significant finding in this case is buried in a footnote, but the court's reasoning is at least clearly stated.

CSPA's Retroactive ApplicationThe starting point in measuring whether a child has aged out for immigration purposes is determining whether the CSPA applies in his or her case. As written, the CSPA potentially affected thousands of cases pending before USCIS and DOS on the date of enactment. Section 8 of the CSPA states that the new law applies to I-130/I-140 petitions, adjustment of status applications, and immigrant visa applications pending before the agencies on August 6, 2002, the date the law took effect. But section 8 also states that the law applies to I-130/I-140 petitions approved before August 6, 2002, provided no final determination had been made on "the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition."

When the law was first enacted practitioners pointed to that provision of section 8 and argued for retroactive application to all petitions approved before August 6, 2002 where the beneficiary had aged out prior to that date. Only cases where the beneficiary had applied for adjustment of status or an immigrant visa and received a final decision before that date would be excluded from coverage.

The DOS and former INS, each concerned with the administrative burden of having to reclassify and adjudicate all of these old or pending cases, struggled with a way to narrowly construe the statute's effective date. The agencies decided to apply full retroactive effect only to CSPA section 6, which relates to Filipinos opting out of conversion to first preference when the petitioner has naturalized. For the other provisions, the former INS stated that the CSPA is not retroactive (emphasis in original).[12] The agencies interpreted the above language of section 8 as applying only to beneficiaries who had applied for adjustment of status or an immigrant visa before aging out and before August 6, 2002, and who had not received a final decision by that date. This, of course, would be a far smaller number of cases than the statute seemed to cover. Beneficiaries who turned 21 while their I-130 petitions were pending could not have then applied for adjustment of status or an immigrant visa because they would no longer have been current. As a conciliatory gesture, but without any apparent statutory basis, the agencies decided to extend CSPA coverage to cases where the beneficiary aged out after the effective date of the law, even though the petition had been approved before that date. This was true regardless of whether the beneficiary had applied for an immigrant visa or adjustment of status before August 6, 2002.

In a detailed 34-page decision, a district court judge in California rejected the government's interpretation of CSPA's section 8, finding it arbitrary and illogical.[13] The court agreed with the plaintiff and found that section 8 requires retroactive application to petitions approved before August 6, 2002 where the petitioner turned 21 before that date. The court did not interpret section 8 as requiring the filing of an application for adjustment of status or an immigrant visa before that date. The court agreed with the plaintiff that only in cases where the beneficiary had filed such an application and received a final decision before August 6, 2006 would the person not be covered.

The plaintiff in this case was a U.S. citizen who had filed an I-130 petition for her unmarried child as an immediate relative. The child turned 21 while the I-130 was pending and thus automatically converted to the first preference category. All of this took place before August 6, 2002. Since the first preference category is still not current, the beneficiary has never filed for an immigrant visa. He was outside the country and thus ineligible to apply for adjustment of status at the time the I-130 was filed, and thus had to wait until the petition was approved before consular processing. When the CSPA was enacted he requested the State Department to reclassify him an immediate relative and start the immigrant visa application process. The agency found that the CSPA did not apply in his case, since he did not have an application pending on August 6, 2002, and he then sought judicial relief. The court held that:

A broad reading of the of the statute is consistent with its plain language and furthers the congressional objective of providing expansive relief and promoting family reunification. Though the increased burden on the INS is likely to be substantial, it is unlikely that many of the cases to be re-examined would be as old as Defendants suggest. Furthermore, Defendants' interpretation seems unsupported by the text of the statute and could produce anomalous results. Although Defendants raise legitimate concerns about administrative burdens and displacement of other beneficiaries, the Court finds that these are insufficient to overcome the considerations favoring Plaintiff's position.[14]

This court decision opens the door for most first preference beneficiaries to request reclassification if they were immediate relatives at the time the I-130 was filed. Given the current backlog in that category, this could be a substantial group of persons. Most are in line to consular process, for had they been eligible to file for adjustment of status, they likely would have done so at the time the I-130 was filed. If they had an adjustment application pending on August 6, 2002, they would have been covered by the CSPA under the agency's current interpretation; if the application had been denied before that date due to age-out, they would not be covered by the CSPA under any interpretation.

The court decision also opens up potential relief to the children of permanent resident aliens who turned 21 before August 6, 2002, but who did not have a application for adjustment of status or an immigrant visa pending on that date. The court has held that the statute does not require the child in that situation to have filed such an application prior to August 6, 2002. If their adjusted age was under 21 on the date the visa became available and they took action to seek permanent resident status within one year of that date, they should also be entitled to CSPA coverage. This would allow many second preference 2B beneficiaries who were originally in the 2A category to reclaim that 2A status. It would also help many derivatives in the other family preference categories who aged out of derivative status.

The difficulty for the preference category beneficiaries is that based on the agencies' narrow interpretation of the CSPA, few of them believed they qualified for relief and thus filed for an immigrant visa or adjustment of status within one year of the visa becoming current. But if they at least requested assistance from an immigration attorney or representative within that one-year window, that might be enough to qualify them under the BIA's broad interpretation of the term "sought to acquire" LPR status.[15]

Conclusion
As expected, administrative and judicial courts are slowly moving to interpret some of the CSPA's most ambiguous provisions and resolve the major controversies surrounding the law's implementation. These four cases all found the agencies' reasoning to be flawed and their interpretations overly narrow. While none of these court decisions bind the agencies beyond the facts in those individual cases, they do encourage further litigation or administrative challenges. They also point out the need for the USCIS and DOS to reexamine several of their current positions. Hopefully, they herald the issuance of a definitive memo that will not only incorporate these case holdings but also clarify the CSPA's other ambiguities.

Endnotes

1 "The Child Status Protection Act - Memorandum 2," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (February 14, 2003); "Child Status Protection Act of 2002: ALDAC #4 - What Constitutes a "Final Determination" on an Application Adjudicated prior to the Effective Date of CSPA?," State #131625 (May 17, 2003).

2 358 F.3d 1161 (9th Cir. 2004).

3 See 8 CFR § 245.2(a)(5)(ii).

4 8 CFR § 204.2(a)(4).

5 INA § 203(h)(3), 8 USC § 1153(h)(3).

6 CSPA § 3, amending and adding INA § 203(h)(3), 8 USC § 1153(h)(3).


7 CSPA § 3, amending and adding INA § 203(h)(1)(A), 8 USC § 1153(h)(1)(A).


8 "Child Status Protection Act," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (September 20, 2002); "The Child Status Protection Act - Memorandum Number 2," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (February 14, 2003), FN.3.


9 Id


10 In re Ji Young Kim, No. A-77-828-503 (12/20/04)


11 Gomes v. USCIS, No. CV-05-3767 (C.D. Cal., Mar. 23, 2006).

12 The Child Status Protection Act - Memorandum 2," Johnny N. Williams, Exec. Assoc. Comm'r, Field Operations, USCIS (February 14, 2003), attached here.

13 Rodriguez v. Gonzales, No. CV 04-8671 DSF (AJWx) (C.D. Cal, May 31, 2006).

14 Slip opinion at 32.

15 In re Ji Young Kim, No. A-77-828-503 (12/20/04).

About The Author

Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic

[Susie]

Hi

I seem to remember someone wanted Mr Charles Wheelers contact information, (415) 394 8695 but he will not/ does not take on cases as he is the head of www.cliniclegal.org a not for profit catholic immigration netwrok, I think. This telephone number can be found via public records but difficult to find.

As you know he wrote the book on the CSPA and so very knowledgeable. Mun, maybe you could contact him on behalf of expats voice to see if he is interested in working with us.??

[Munish]

Here is the latest article by Carl Shusterman in April 2007.

http://www.ilw.com/articles/2007,0409-shusterman.shtm

How "Age-Outs" Can Benefit under CSPA
by Carl Shusterman
Can sons and daughters who are derivative beneficiaries of an approved visa petition who have "aged-out" obtain benefits under the Child Status Protection Act (CSPA)? If so, is this true even if they have yet to apply for adjustment of status? In my opinion, and from the clear language of the law, the answer is yes. However, in the absence of CIS regulations or interpretations of the "age-out" provision of CSPA, someone who would benefit from this statute needs to step forward to claim what is rightfully theirs.

Section 3 of CSPA amends section 203(h)(3), INA as follows:

RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A)and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.'.

Here is how I believe that this section is intended to work: A daughter has waited many years to adjust her status together with her parents under her citizen uncle's approved family-based fourth preference for her father. By the time that the priority date becomes current, she has aged-out. Under section 3 of CSPA, the "original priority date" means the priority date of the uncle's fourth preference petition. The "appropriate category" is the family-based 2B category since the daughter is the unmarried, adult daughter of a permanent resident father. Using the original priority date under the 2B category gives the daughter a "current" priority date and allows her to adjust her status under section 245(i).

I wrote an article about this issue many years ago, and other immigration attorneys subsequently wrote articles agreeing with this interpretation. However, the CIS has never addressed this question.

Last summer, the Board of Immigration Appeals (BIA), in a unanimous decision called In re Maria T. Garcia, agreed with this interpretation of section 3 of CSPA.

Unfortunately, the BIA did not designate this case as a precedent decision. Therefore, although it is persuasive, it is not binding upon the CIS, the agency which decides petitions under CSPA. In re Maria T. Garcia involved an approved visa petition and an adjustment application which was filed prior to the enactment of CSPA (August 6, 2002), but which remained pending long after CSPA was enacted. Since CSPA was enacted almost five years ago, few applicants today have cases involving adjustment applications submitted prior to August 6, 2002. Does section 3 of CSPA apply to derivative beneficiaries of immigrant visa petitions approved prior to the enactment of CSPA if their applications for adjustment of status were submitted after CSPA? A recent BIA precedent decision provides a basis for answering this question in the affirmative.

In re Rodolfo AVILA-PEREZ, Interim Decision #3551 (BIA, February 9, 2007), interprets the section 8 of CSPA which determines the effective date of the statute. Section 8 states that

The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of-- (1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition.

In interpreting this provision of law, the Board stated:

"We conclude that section 8(1) of the CSPA, as enacted, does not require an individual whose visa petition was approved before its effective date to have an adjustment application pending as of the date of its enactment."

We conclude that combining the Board's reasoning in In re Maria T. Garcia and In re Rodolfo AVILA-PEREZ compels the conclusion that a derivative beneficiary of a visa petition which was approved prior to the enactment of CSPA (and prior to May 1, 2001) and who "aged-out" may adjust status under by submitting an I-485 under section 245(i) today. However, as we stated previously, there needs to be a qualifying person who is willing to test this reasoning before the CIS and, if necessary, in Federal Court.

[Munish]

Shusterman writes this from the viewpoint of someone who can make an adjustment of status, but in IMO the legal provisions are equally applicable to derivative beneficiaries outside the USA who aged out before the CSPA enactment date. This is in two situations:

1) Where the the original application has not been finally determined until after the CSPA enactment date; and
2) Even if it has been determined before the CSPA enactment date, a person may enter the USA on another visa (subject to dealing with the immigration intent problem) and adjust status (Rodolfo) (even though I fall under 1), my own attorney suggested to me the easist option is to do this on the basis of Rodolfo.

However, these are just opinions with lack of jurisprudence on the subject and so, as stated above manier time on this site, here is the key statement: "However, as we stated previously, there needs to be a qualifying person who is willing to test this reasoning before the CIS and, if necessary, in Federal Court."

[O&A]

Hi Mun79;
Wondering if you have some comments for "Age-Outs that are the sons and daughters " may have some Benefit under CSPA, who are the derivative beneficiaries of an in-process visa petition under employment E3 catagory i.e. I-140 was filed on 2/16/07 &
I-485 was filed on 4/4/07,
The visa petition was on the basis of labor cetification approval dated 1/10/07against the application submitted on 5/16/2001, which was the priority date for labor certification.
The derivative beneficiary son was in USA at TD visa from April, 2000 to Feb 2001, and then on H-4 visa from March 2001 to Feb, 2007 ( according to I-797 documents though his 21st birthday was on 9/7/2006).
He did completed his high school and Unviersity under-graduation in USA during this period.
My question is whether the labor certification application date can be treated/considered as "Priority date" though my attorney i.e hired by the my employer verbally said that the labor certification priority date is not applicable for my son.
1) Can something be done in this case under CSPA?
2)Will any attorney be interested to take-up this case though the original petition is still in-process through an other attorney?
Any other thoughts!

[v2002]

Hi Mun79;
Wondering if you have some comments for "Age-Outs that are the sons and daughters " may have some Benefit under CSPA, who are the derivative beneficiaries of an in-process visa petition under employment E3 catagory i.e. I-140 was filed on 2/16/07 &
I-485 was filed on 4/4/07,
The visa petition was on the basis of labor cetification approval dated 1/10/07against the application submitted on 5/16/2001, which was the priority date for labor certification.
The derivative beneficiary son was in USA at TD visa from April, 2000 to Feb 2001, and then on H-4 visa from March 2001 to Feb, 2007 ( according to I-797 documents though his 21st birthday was on 9/7/2006).
He did completed his high school and Unviersity under-graduation in USA during this period.
My question is whether the labor certification application date can be treated/considered as "Priority date" though my attorney i.e hired by the my employer verbally said that the labor certification priority date is not applicable for my son.
1) Can something be done in this case under CSPA?
2)Will any attorney be interested to take-up this case though the original petition is still in-process through an other attorney?
Any other thoughts!

I-140 was filed on 2/16/07 &
I-485 was filed on 4/4/07,

21st birthday was on 9/7/2006).........if your child is running his 21 b'day now than the childs application will be filed for I485 ......if your child is running 22 now and COMPLETED 21st birthday was on 9/7/2006).Than your child have aged out.....
As per the law the I485 MUST BE FILED BEFORE THE CHILD COMPLETES THE AGE OF 21... SOME lawers make a mistake for running 21(20 complete) for cspa which is not right.
If the child is not here now but have not completed 21 than you will file his pasperwork here as follow to join and 3 months before he turns 21 you must file an application for your child with uscis letting them know that your child was a ageout case. that will keep him protected under cspa.

[Munish]

O&A,

Look like the CSPA will not apply for the current application. Your son turned 21 on 9/7/2006. You filed the I-140 on 2/16/07 after he turned 21. In addition to v2002's posting see also http://www.murthy.com/news/n_impret.html and http://www.hooyou.com/ageout/childemp.htm which provide the lawyers' own interpretations of the CSPA in the context of employment based visa.

When you get permanent residency, unfortunately it looks like you cannot convince the USCIS to retain the 5/16/2001 priority date for an F2B family-based petition either because he was never the derivative benefiary in the I-140 application. Although there is no harm attempting to try it on the application by stating you are seeking to retain the original prioirty date, but I don't think it will work.

However, may be some lawyer might be able to use the processing times of the labor certification approval as an example of delays which the CSPA was supposed to protect against, but this would take a lot of convincing in court and has to balanced with costs involved. Personally, I don't think this will work either but this is IMHO.

[forbor4c1980]

V2002: So I spent the past weekend perusing the CSPA as well as I could and I still don't see how the act can help me outright. On the bright side my lawyer finally got back to me. He was on "vacation." He told me to resend the emails I sent him and he would get back to me. That was last friday. We'll see what happens!

[forbor4c1980]

Oh I had another question to throw out to you guys. So I aged out in 2001. Did my parents have to file a new I-130 for me? I don't believe my parents did (again at the advice of my lawyer). Is this correct? Or did my lawyer screw up again? I asked him this question in the email I sent him.

[Munish]

OMG! If your parents have not filed a new I-130 for you that is the biggest screw up of all! Find out and if you have not do it ASAP!

I thought you said in an earlier posting that you were already an F2B beneficiary and that your lawyer advised your parents against naturalization (implying they did in fact file an I-130). Please check you are the beneficiary of an family-based petition ASAP.

[forbor4c1980]

My attorney said that I would be automatically converted to the 2B category when I aged out and that there was no need to file a new I-130 on my behalf! Was this inaccurate as well?

[Munish]

Oh I see. You mean your parents petitioned you as a child originally? In which case, yes it automatically converts. Get your paperwork ASAP so you know exactly what your position is. This has to be the priority right now so we know exactly where you are.

[v2002]

My attorney said that I would be automatically converted to the 2B category when I aged out and that there was no need to file a new I-130 on my behalf! Was this inaccurate as well?
Your attorney is the BIGGEST IDIOT.:rolleyes: I would not trust him on anything now :notworthy: :notworthy: :notworthy: :notworthy:
.. call the USCIS ask FOR AN IMMIGRATION OFFICER..... than explain the situation in short asking about if there is the need for I-130 filing again..... THAN talk to your attorney accordingly if he still talks different than the information you get from immigration officer you need a NEW ATTORNEY.:D

[forbor4c1980]

I have all of MY paperwork in front of me. My parents filed a I-130 on my behalf on 1/15/98. I got my approval notice on 8/7/98. My priority date is 1/15/98. This was a 2A petition ("unmarried child under 21 of permanent resident 203(a) (2) (A) INA").

So there was no need for my parents to file a new 2B petition for me when I turned 21 since I already had an approved 2A petition? What about what it says on the USCIS website about Family Based Immigration? The language is a bit confusing...

When a Child Reaches Majority

a. When the Child beneficiary of an approved immediate relative petition turns 21 years of age, the petition automatically converts to first preference. The priority date is the filing date of the petition which at the time of filing accorded immediate relative status.

b. A child accorded 2A status derivatively loses entitlement to such status upon reaching the age of 21. Under INS regulations, however, the petitioner must file a new petition on behalf of the alien to accord second (2B) preference. The new petition shall be accorded the priority date of the initial petition.

c. A child in the 2A group who reaches 21 years of age is no longer entitled to 2A status. If such child is the beneficiary of an approved petition, the petition automatically provides the basis for 2B status as of the beneficiary's 21st birthday. No further action by INS, the petitioner or the beneficiary is necessary. (The situation is similar to that of an IR-2 applicant who turns 21 prior to visa issuance; that petition automatically converts to provide first preference status.

b) and c) seem to contradict each other. I don't know...

[Munish]

B and c do not contradict one another. b. applies only in relation to derivative beneficiaries (i.e. the spouse or child of the principal beneficiary). C applies to the principal beneficiary. As V2002 said call the USCIS for clarification. You are (or should be) within c so that no further action is required, but in light of who you attorney is, I would confirm this independently.

[forbor4c1980]

B and c do not contradict one another. b. applies only in relation to derivative beneficiaries (i.e. the spouse or child of the principal beneficiary). C applies to the principal beneficiary. As V2002 said call the USCIS for clarification. You are (or should be) within c so that no further action is required, but in light of who you attorney is, I would confirm this independently.

That makes a lot of sense Mun79. Thanks! Oh and on a sort of unrrelated note I couldn't help but notice that your location is the UK. My attorney is from the UK as well! :D

[Munish]

Yes, I am also an F2B beneficiary and so am in tota empathy with the member on this thread. All the details of my applications are on this thread. It's the first post I made when I joined this forum. Why did you a lawyer from the UK? I would shift to an attorney that is easily accessible by your sponsoring parent.

[forbor4c1980]

Yes, I am also an F2B beneficiary and so am in tota empathy with the member on this thread. All the details of my applications are on this thread. It's the first post I made when I joined this forum. Why did you a lawyer from the UK? I would shift to an attorney that is easily accessible by your sponsoring parent.

My laywer doesn't live in the UK. He's just originally from there. Heh. Sorry for the confusion. He has a British accent and everything though!

[Munish]

British lawyers! Never trust those. LOL

[forbor4c1980]

British lawyers! Never trust those. LOL

I like what you call lawyers over there...Solicitors...hah!

[v2002]

British lawyers! Never trust those. LOL
British lawyers! Never trust those. LOL!

:D :D :D :D :D No wonder he (your lawer) does does not KNOW ABC on your case.
Get an good american attorney ... :D

[v2002]

Punky could you do something on this thread please ? " Aging out " it does not load fast enough ....may be its OVERLOADED .. and a new thread needs to be used for new posts.

[Munish]

So here is the latest, although it does not really add anything to what everyone knows.

Called the USCIS regarding my case. They told me to call the NVC. Thought that was weird because the State department does not have the power to amend priority dates. Did that anyway just to go through the motions and they confirmed what I already knew... that I have to speak to the USCIS.

Called the USCIS a second time. They told me to talk the NVC again!!!!!!! Anyway eventually they transferred me to a level 2 officer. He told me that the USCIS can take between 90 and 180 days to respond to a letter.

Anyway he has told me that I need to write to them directly as this is the only way direct communication is possible (we all knew that anyway). He could not help with the time lines, whether they received the letter etc, etc. But he told me to write to them quoting the USPS registration number I used for a response.

In terms of my legal rights, he confirmed that he has "heard of" F2B applicants successful recapturing the priority dates of earlier F4 petitions so it seems like the USCIS have changed their position on this, but they still need to issue rules on it.

Anyway I am going to write to them again, asking them to respond to my previous letter, but of course officially it could be another six months before I hear from them again!!!!!

Why is bureacracy such a b**ch!

[jayd_lowrider]

The Freeman 04/21/2007

WASHINGTON DC — The plan of the White House to scrap immigrant petitions that many Filipinos with close relatives in the United States now have to wait from five up to 20 years to push through has triggered a howl of protest from the immigrant community in the United States.

United States President George W. Bush is reportedly moving to eliminate of all family-based immigrant visas as part of measures to reform the Immigration Reform and Control Act of 1986 (IRCA).

This stand of the White House clashes directly with US House Resolution 1645, which provides for comprehensive US immigration reforms.

The measure aims, among others, to eliminate the backlog in family-based visa applications, especially for spouses and unmarried children of legal residents, or the green card holders, 21 years old and younger.

Jon Melegrito, executive director of the National Alliance for Filipino Veterans Equity (NAFVE), warns the White House move will have severe repercussions for the Filipino-American community and their families in the Philippines.

Stephen Legomsky of the Washington University School of Law told a hearing of the US House subcommittee on immigration, citizenship, refugees, border security and international law Thursday afternoon, "these separations virtually invite illegal immigration".

Melegrito accuses Bush of "playing politics" with the proposed immigration reform package by offering to scrap family-based visas. Many see it as old-fashioned DC horse-trading to prod hard-line Republicans to support the reforms.

Curiously, much of the Bush package such as a guest worker program and allowing undocumented workers to stay in the US after paying fines, have drawn wider support from Democrats than from his own party.

Republicans have taken the tack that prevention and intensified enforcement - like building a wall across the Mexican border - was the way to go. There’s an estimated 250,000 undocumented Filipinos in the US and they would obviously be anxious about any fresh crackdown on illegal aliens.

Muzzaffar Chishti, Director of the Migration Policy Institute, testified, "With very few options for entering legally through employment-based visa categories, intending immigrants could try to enter through the family-based categories...but the wait list for many of these categories are prohibitively long."

"In the absence of legal channels, immigrants entering our labor market have come to rely on illegal channels," Chishti told the solons.

The pressure is only sure to mount as so-called Baby Boomers near retirement. This and a combination of normal attrition and economic expansion are expected to create 65 million new jobs by the end of the decade, a demand the local workforce can barely fill.

Filipino-American groups are joining a large immigration rally on May 1, dubbed the "Great American Boycott."

Organizers are asking protesters to stay off work and shopping malls and march on the streets of D.C. The divergent immigrant groups are driven by their own agenda and priorities.

For the Fil-Am community, protecting their right to bring spouses and children here is top on their list.

"Families should be together as soon as possible, and they should shorten the time between applying for the visa and getting it here," explained Rozita Lee, vice chairperson of the umbrella National Federation of Filipino-American Associations (NaFFAA).

On the other hand, migrant workers group Migrante International opposed the move saying it is the right of a person to travel and migrate to US and other parts of the world.

Migrante International regional coordinator Ritchie Nellas said that the move might have to do with the September 11 attack for the US to control and monitor the people who are migrating to the country.

"It might be part of their anti-terror war for them to control and know who are entering their country," he said.

Nellas said that eight to ten millin Filipinos have migrated to the different parts of the world and the biggest part of the number went to the US.

At present, he said that there are some 2.5 million Filipino migrants in the US, which makes them the third biggest foreign nationality in number there.

At present, about 60,000 new Filipino immigrants enter the United States annually, making Filipinos the largest immigrant group from the Asia-Pacific region.

Nellas said that many anti-government and anti-Bush groups from other countries have also entered the US.

He cited Bagong Alyansang Makabayan or Bayan, which has also formed a chapter in the US.

"Many groups are against the US policies. Bush wants to restrict the entry of foreign nationals to their country not only to prevent entry of terrorists groups but also other legitimate groups," he said.

[jayd_lowrider]

I thought there is a comprehensive Immigration Reform on writing to be signed by Pres. Bush? If this move succeeds then all our hard work will be in vain.

[Munish]

I think this is great news. This is because in reality you cannot remove or eliminate all the family-based petitions as the support is not there. The Democrats control both houses and it would be political suicide.

What Bush has done has brought attention to the family-based immigrant petitions, which will cause others to come up with more sensible solutions, such increasing the number of immigrant per year or even may be coming up with the equivalent of a V visa allowing approved petitions to reunite with families until their petition becomes current.

At worst nothing beyond the benefits in the Strive Act will happen. Even if, hypothetically, this did go through, I would imagine any such measure would protect petitions that have already been filed with the USCIS and is awaiting consular or adjustment processing.

[jayd_lowrider]

President's word is enough to get support. 5 years or so extension for military presence in Iraq does not have support either. Hopefully it will not push through as if it get any support from the Senate or the House then its over.

[Munish]

The difference the President is "Commander in Chief" and so has special powers when it comes to military matters.

[GKG]

Hi Munish

So I have posted some information about my daughter's case - same thing - I along with my husband and son got the Green Card and she aged out by 2 months. Then last year I filed the I-130 for her and got a 'Receipt Notice' - still awaiting the Approval Notice.
Do you thing it will be helpful if I write to the California Centre (service center where the application is filed) and ask them to allote the Priority date of the original F4 petition, based on the BIA decisions?
Also can you give me the tel. nos. where you called the USCIS and NVC? Will it help calling them?


Thanks

GKG

[Munish]

Hi GKG,

You can get the numbers going to their respective websites. If you cannot find it let me know and I will post it.

Before anything else, has your daughter aged out because she is 21, in which case you can reduce her age by the number of months it took the INS to approve your petition, and may classify her a child. Please let me know if this calculation has been done, or if you are not sure I'll explain further. If she is a "child" under the CSPA she can file the consulate form (I think DS-230 but I will double check) with the consulate office the processed your immigrant visas if no more than a year has passed.

If your daughter has aged out taking into account the CSPA calculation then so far you've done everything right.

However, do send, by letter, a copy of your original application of which your daughter was a derivative beneficiary as proof of the priority date (PD) and also a letter requesting retention of that date pursuant to the Immigration and Naturalization Act, section 203(h)(3) (or CSPA, section 3).

I would make the letter as simple as possible with the basic points. As far as I know California Service Center have been alloting the earlier priority date where requested, so that is good news.

In terms of calling the numbers, this is a waste of time in my opinion. I have tried it numerously, but tell you ultimately in the most complex of cases to write to the USCIS. They did confirm that people have recaptured earlier PDs but they cannot access officers in the service centers directly regarding your case. The only means of direct communication is letter to the California Service Center.

Let me know if you have more questions. I am eager to hear news from someone that I know actually has reserved the original PD.

Good luck.

Munish

[GKG]

Hi Munish

Thanks for this quick response.

So the calculation was done to reduce the days etc etc. and she still aged out bu about 75 days.

I read with interest what you just wrote:
"However, do send, by letter, a copy of your original application of which your daughter was a derivative beneficiary as proof of the priority date (PD) and also a letter requesting retention of that date pursuant to the Immigration and Naturalization Act, section 203(h)(3) (or CSPA, section 3).

I would make the letter as simple as possible with the basic points. As far as I know California Service Center have been alloting the earlier priority date where requested, so that is good news."

So do you know for sure that the Cal. Service centre is alloting the earlier PD where requested?

That sounds like really good news.
I will write to them - and keep the letter to the point.
Thanks for the help

GKG

[Munish]

GKG,

What I know is hearsay. I have seen lawyers claim they have succssfully obtained earlier PDs for their clients in these circumstances and refer specifically to the California Service Center. A friend of mine is also an immigration lawyer in DC and has told me everytime she has made an application on her clients' behalf, it has been appropriately dealt with, and that mine was the first she heard of being erroneously treated.

I do not know anything for sure I am afraid and I don't want to raise hopes (clearly because of my one experience). However, I would remain hopeful and positive, and by the time it is processed may be a case on the CSPA will be well settled removing any doubts.

The only downside with California is the amount of time it takes to process application. What is the date of the receipt notice and does it give a time frame. If not you can see this on their website.

[GKG]

Hello Munish, Sue

So I discussed with my brother - we felt that there was nothing to loose by writing this letter to ask for a priority date of the earlier application.
However what I see on the Cal. Service Centre website is that still processing I-130 (son/daughter over 21) of date Feb. 7 2005.
Although we have received the 'Receipt Notice' I wounder how long it will take for the 'Approval Notice' ....
Do you think its any use talking to a lawyer right now? with no Approval Notice' in hand?

Thanks for all the help and suggestions

GKG

[Munish]

Definitely write to them. As for seeking a lawyer I would do your research now and have a shortlist ready for when you receive the approval notice.

If the earlier PD is granted, will that is great. If not then you would have to consider legal action in the Federal Courts to try and recpature that date.

What is the date mentioned on your receipt notice? You should be able to estimate the time from that.

[GKG]

Hi Munish

The Receipt notice date is June 12 2006 - and they are processing Feb. 7 2005 as yet

GKG

Definitely write to them. As for seeking a lawyer I would do your research now and have a shortlist ready for when you receive the approval notice.

If the earlier PD is granted, will that is great. If not then you would have to consider legal action in the Federal Courts to try and recpature that date.

What is the date mentioned on your receipt notice? You should be able to estimate the time from that.

[Munish]

Oh wow! You should have moved to the North East. The wait at Vermont Service Center is about nine months.

You still have another 16-18 months to go. That is crazy!

[Susie]

Hello Munish, Sue

So I discussed with my brother - we felt that there was nothing to loose by writing this letter to ask for a priority date of the earlier application.
However what I see on the Cal. Service Centre website is that still processing I-130 (son/daughter over 21) of date Feb. 7 2005.
Although we have received the 'Receipt Notice' I wounder how long it will take for the 'Approval Notice' ....
Do you think its any use talking to a lawyer right now? with no Approval Notice' in hand?

Thanks for all the help and suggestions

GKG



Hi

On your receipt notice you should have two dates, imho

One will be a receipt date the other priorty date

What are both dates?

[Munish]

Isn't the PD given after processing at the USCIS? I never saw my receip notice or approval notice so I have not idea. I only learned of my PD after the NVC wrote to me informing me the USCIS passed them the application.

[O&A]

Munish:
Shall I send the details of my son for whom I have discussed on Expat forum in the past. That would be a good example to include because he moved to USA from Canada with me at the age of 15 years.
He completed his High School and then under-grad at younge ages, here. He was in the local newspaper twice (more than half page coverage) for completing his under-grad. at 19 years and 8 months.
However, he was gaed-out by 4 months because my labor certification approval took almost 5 years 8 moths. Thanks.

[Munish]

Yes O&A I agree. Do post the details on this thread so other viewers interested in this topic can see it in one place. Rather than rewriting anything you could just copy the link the the other thread so people can click the link to take them to your thread if it is easier.

Munish

[Susie]

Isn't the PD given after processing at the USCIS? I never saw my receip notice or approval notice so I have not idea. I only learned of my PD after the NVC wrote to me informing me the USCIS passed them the application.



Hi

One date is the receipt date, eg the date of being received in the service centre

The priorty date is the date at whcih time the USCIS expect to review your case and/or adjudicate file

If it is now 30 days past your priorty date you can call the 1-800 number and insist on a Case status review

They then send e-mail to which office holds the file and they in turn should get back within 30 days of your request for a case status review

[JakeCastle]

I am calling out to ALL FILIPINOs concerned to join a core group to discuss and band our resources. Please add me as a frined at YAhoo MEssenger my Yahoo ID is Jake_of_90210 please add me as a friend and form a peer group. I know that in terms of sheer number the Philippines is most affected.

Again to all Pinoys! please add me as a friend my Yahoo ID is Jake_of_90210 my email add is naturally the same.

Again thanks to Sussie and Mun79 for keeping this thread alive.... I am still here trapped in Manila alone waiting for the chance to be reunited with my family.... keep up the good work guys.

[JakeCastle]

Sorry am I missing something here? In the April visa bulletin, the 1st preference category is processing dates in Feb 22, 1992. The 2FB is October 1, 1996. Also, when you talk about the "family reunion act" are you referring to the LIFE act? I know for sure that I'm not eligble for that.



I totally AGREE with forbor4c1980 I'd say we have a similar case email/YM tapos ayun tignan natin kung pano diskaste natin. translated: (then lests see what we can do together.) :welcome:

[JakeCastle]

Hi guys am posting a letter which i inted to send via registered mail. I was hoping that you folks especially the barristers would send you opinions regarding the letter. Once again, keep fighting the good fight.





Date: Wednesday, May 16, 2007

To: US Consular Office, Manila

Cc: California Visa Processing Center
Josue D. Castillo

Subject::




Dear Sir/Madame,

I write with utmost humility to ask for your compassion and petition your kind office to issue me, Josue Frankel M. Castillo (JFMC) an F4 immigrant visa and RETAIN THE ORIGINAL PRIORITY DATE 11-6-78. My personal details are similar to the case unanimously decided in favor for Maria T. Garcia (file number A79 001 587 in Houston) by the Bureau of Immigration Appeals (BIA) regarding the Child Status Protection Act (CSPA).

I submit the following photocopied documents to your office for your perusal and hope for a favorable and expeditious action:

1. Notice if Approval of Relative Immigration Visa Petition

2 A photocopy of Josue D. Castillo (JDC) my father’s Biographic Data (OF-230
PART I) , application for Immigrant Visa and Registration.

3. A photocopy of Gloria M. Castillo (GMC) my mother’s Biographic Data (OF-230
PART I) , application for Immigrant Visa and Registration.

4. A copy of the case filed for and decided unanimously in favor of Maria T. Garcia (file number A79 001 587 in Houston) by the BIA.



CASE HISTORY:

LOIDA C. DACANAY, an American Citizen (USC), filed a fourth preference family-base immigration in favor of her brother, JODUE D. CASTILLO, on 9/25/78 and approved on 11/6/78. Said PETITION FOR PREFERENCE CLASSIFICATION was forwarded to the UNITED STATES CONSULATE in Manila for the actual issuance of visas. JOSUE FRANKEL CASTILLO was one year old when the petition was approved. He was born November 11, 1977.

Sometime in the second quarter of the year 1998, the US Embassy in Manila notified the family of JOSUE D. CASTILLO to submit the required documents for the processing and eventual issuance of their long awaited immigrant visa to the USA. At this point in time Josue Frankel M. Castillo was only 20 years old and six months old. Because of the restrictive numerical limits the approved immigration category for the principal beneficiary was subjected to, the issuance of the immigrant visa was not acted upon immediately. Josue Frankel, the derivative beneficiary turned 21 years old. Sometime n the second quarter of year 2000, the immigrant visas were finally issued to the principal. JOSUE D. CASTILLO, and ti the derivative beneficiaries, excluding JOSUE FRANKEL who aged-out because by then, he was 22 yrs old.

As of this writing, JOSUE FRANKEL M. CASTILLO (JFMC) is 29 years old.



PETITION

This is to petition the Department of Homeland Security (DHS) to issue an immigrant visa to JFMC on the basis that he is a child derivative beneficiary of an approved immigration petition filed in favor of his father, JDC, as a fourth-preference family-based immigrant (see attached photocopy of NOTICE OF APPROVAL OF RELATIVE IMMIGRATION VISA PETITION). As such, he qualifies to be allotted an immigrant visa as an alien under the category of an unmarried son of permanent resident alien (se sect. 203(a)(2)(A) of the INA. Under such status as a child family member, he shall be “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying…. the parent” (see sect. 203(d). Immigrant visa made available for family-sponsored immigrants should be issued to JFMC (see sect. 203(e)(1) of INA).

JFMC was not issued an immigrant visa at the time visas were issued to JDC, and the other derivative beneficiaries of the petition on issue, because he was over 21 yrs by then. He aged-out.

The CSPA amended INA to provide protection to “children” who “age-out” at the time immigrant visas are issued to beneficiaries. JOSUE FRANKEL M. CASTILLO was 20 yrs old when the advise for Josue D. Castillo, the principal beneficiary, to prepare documents necessary for the processing of immigrant visas for himself (JDC) and other derivative beneficiaries was received. In one of the questionnaires (see attached OF-230 PART I) that was required by the US Embassy in Manila to be submitted, JDC was asked to list the names of persons that he wished to bring with him for immigration. Josue Frankel M. Castillo is on that kust and he was be then aged 20 yrs. At this point in time therefore, Josue Frankel M. Castillo was still a child of Josue D. Castillo because he was below the age of 21.

Sect. 3 of the CSOA which amended sect. 203 of the INA to which sect. 203 (h)(1)(A) was added, provides a reference as to when a derivative beneficiary oa a visa petition continues to qualify as a child . It says “(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN (1) IN GENERAL. - For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using (A) the age if the age of the alien…(… in the case of subsection (D), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability….”. Therefore it is VERY CLEAR that Josue Frankel M, Castillo is still a child of Josue D. Castillo and qualifies to be accorded an immigrant visa as a derivative beneficiary of his father’s visa petition.

If we assume that Josue Frankel M. Castillo has ceased to be a child of JDC because he was 22 yrs old when immigrant visas were finally issued to the family then, sect. 203(h)(3) would apply to his case. 203(h)(3) states: “RETENTION OF PRIORITY DATE- If the age of the alien is determined under par (1) to be over 21 yrs of age or older for the purposes of subsection (a)(2)(A) and (d), the alien’s petition shall automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition”. JFMC remains unmarried so therefore the appropriate category of family-based immigrants which is unmarried sons and daughters of permanent residents. Further, being a derivative beneficiary would be the F4 immigration petition filed in favor for his father, JDC which was approved on 11-6-78. As such, finally he shall retain the priority date of his father’s petition and that is 11-6-78, for the F4 preference.

The case of Josue Frankel M. Castillo is similar to that of the case decided unanimously by the board of immigration appeals involving a Mexican girl. In re: Maria T. Garcia, file number A79 001 587 – Houston, the Board of Immigration Appeals decided in favor of Garcia’s appeal for adjustment of status. Further she got the entitlement to retain the priority date for her parent’s petition under F4 category and could use same priority date to apply for an immigrant visa under the second-preference immigrant visa category as an unmarried daughter of a Lawful Permanent Resident.

This appeal therefore, is for the consular office of the US Embassy Manila, to grant me, Josue Frankel M. Castillo an immigrant visa based on the above cited information. The approval of this request would be in concurrence with the intent of the US Congress when it passed the CSOA and that noble intent is to promote the reunification of broken families consequent to their immigration to the USA, the land of brave and of the free.

Hoping for you expeditious and favorable action,

Sincerely,

Josue Frankel M. Castillo

[JakeCastle]

From: Josue Frankel M. Castillo
178 Prudencio St. Sampaloc
Manila, Philippines 1008

To: Mr. Lawrence Mire
Immigrant Visa Chief
Consular Section
U.S. Embassy
1201 Roxas Boulevard
Manila, Philippines 1000

Cc: California Service Center
24000 Avila Road
2nd Floor, Room 2312
Laguna Niguel, CA 92677

Mr. Josue D. Castillo
1308 N. Lind Ave. Berkeley,
IL, 60163 USA

Senator Dick Durbin
230 S. Dearborn St., Ste. 3892
Chicago, IL 60604

Via e-mail to:

USA Today
Chicago Tribune
Chicago Sun-Times
Chicago Parent


Date: Wednesday, May 16, 2007


Subject: Petition for an F4 visa and RETENTION OF ORIGINAL PRIORITY DATE:
November 6, 1978


Dear Sir,

I write with utmost humility to ask for your compassion and petition your kind office to issue me, Josue Frankel M. Castillo (JFMC) an F4 immigrant visa and RETAIN THE ORIGINAL PRIORITY DATE 11-6-78. My personal details are similar to the case unanimously decided in favor for Maria T. Garcia (file number A79 001 587 in Houston) by the Bureau of Immigration Appeals (BIA) regarding the Child Status Protection Act (CSPA).

I submit the following photocopied documents to your office for your perusal and hope for a favorable and expeditious action:

1. Notice if Approval of Relative Immigration Visa Petition

2 A photocopy of Josue D. Castillo (JDC) my father’s Biographic Data (OF-230
PART I), application for Immigrant Visa and Registration.

3. A photocopy of Gloria M. Castillo (GMC) my mother’s Biographic Data (OF-
230 PART I), application for Immigrant Visa and Registration.

4. A copy of the case filed for and decided unanimously in favor of Maria T.
Garcia (file number A79 001 587 in Houston) by the BIA.

CASE HISTORY:

LOIDA C. DACANAY, an American Citizen (USC), filed a fourth preference family-base immigration in favor of her brother, JOSUE D. CASTILLO, on 9/25/78 and approved on 11/6/78. Said PETITION FOR PREFERENCE CLASSIFICATION was forwarded to the UNITED STATES CONSULATE in Manila for the actual issuance of visas. JOSUE FRANKEL CASTILLO was one year old when the petition was approved. He was born November 11, 1977.

Sometime in the second quarter of the year 1998, the US Embassy in Manila notified the family of JOSUE D. CASTILLO to submit the required documents for the processing and eventual issuance of their long awaited immigrant visa to the USA. At this point in time Josue Frankel M. Castillo was only 20 years old and six months old. Because of the restrictive numerical limits the approved immigration category for the principal beneficiary was subjected to, the issuance of the immigrant visa was not acted upon immediately. Josue Frankel, the derivative beneficiary turned 21 years old. Sometime in the second quarter of year 2000, the immigrant visas were finally issued to the principal JOSUE D. CASTILLO and his derivative beneficiaries, excluding JOSUE FRANKEL who aged-out because by then, he was 22 yrs old.

As of this writing, JOSUE FRANKEL M. CASTILLO (JFMC) is 29 years old.

PETITION

This is to petition the Department of Homeland Security (DHS) to issue an immigrant visa to JFMC on the basis that he is a child derivative beneficiary of an approved immigration petition filed in favor of his father, JDC, as a fourth-preference family-based immigrant (see attached photocopy of NOTICE OF APPROVAL OF RELATIVE IMMIGRATION VISA PETITION). As such, he qualifies to be allotted an immigrant visa as an alien under the category of an unmarried son of permanent resident alien (se sect. 203(a) (2) (A) of the INA. Under such status as a child family member, he shall be “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying…. the parent” (see sect. 203(d). Immigrant visa made available for family-sponsored immigrants should be issued to JFMC (see sect. 203(e) (1) of INA).

JFMC was not issued an immigrant visa at the time visas were issued to JDC, and the other derivative beneficiaries of the petition on issue, because he was over 21 yrs by then. He aged-out.

The CSPA amended INA to provide protection to “children” who “age-out” at the time immigrant visas are issued to beneficiaries. JOSUE FRANKEL M. CASTILLO was 20 yrs old when the advice for Josue D. Castillo, the principal beneficiary, to prepare documents necessary for the processing of immigrant visas for JDC and other derivative beneficiaries was received. One of the questionnaires (see attached OF-230 PART I) that was required by the US Embassy in Manila to be submitted, JDC was asked to list the names of persons that he wished to bring with him for immigration. Josue Frankel M. Castillo is on that list - he was then aged 20 yrs. At this point in time therefore, Josue Frankel M. Castillo was still a child of Josue D. Castillo because he was below the age of 21.

Sect. 3 of the CSPA which amended sect. 203 of the INA to which sect. 203 (h)(1)(A) was added, provides a reference when a derivative beneficiary of a visa petition continues to qualify as a child . It says “(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN (1) IN GENERAL. - For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using (A) the age if the age of the alien…(… in the case of subsection (D), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability….”. Therefore it is VERY CLEAR that Josue Frankel M, Castillo is still a child of Josue D. Castillo and qualifies to be accorded an immigrant visa as a derivative beneficiary of his father’s visa petition.

If we assume that Josue Frankel M. Castillo has ceased to be a child of JDC because he was 22 yrs old when immigrant visas were finally issued to the family then, sect. 203(h)(3) would apply to his case. 203(h)(3) States: “RETENTION OF PRIORITY DATE- If the age of the alien is determined under par (1) to be over 21 yrs of age or older for the purposes of subsection (a)(2)(A) and (d), the alien’s petition shall automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition”. JFMC remains unmarried so therefore the appropriate category of family-based immigrants which is unmarried sons and daughters of permanent residents. Further, being a derivative beneficiary would be the F4 immigration petition filed in favor for his father, JDC which was approved on 11-6-78. As such, finally he shall retain the priority date of his father’s petition and that is 11-6-78, for the F4 preference.

The case of Josue Frankel M. Castillo is similar to that of the case decided unanimously by the board of immigration appeals involving a Mexican girl. In re: Maria T. Garcia, file number A79 001 587 – Houston, the Board of Immigration Appeals decided in favor of Garcia’s appeal for adjustment of status. Further she got the entitlement to retain the priority date for her parent’s petition under F4 category and could use same priority date to apply for an immigrant visa under the second-preference immigrant visa category as an unmarried daughter of a Lawful Permanent Resident.

This appeal therefore, is for the consular office of the US Embassy Manila, to grant me, Josue Frankel M. Castillo an immigrant visa based on the above cited information. The approval of this request would be in concurrence with the intent of the US Congress when it passed the CSPA and that noble intent is to promote the reunification of broken families consequent to their immigration to the USA, the land of opportunities, home of the brave and of the free.

Hoping for you expeditious and favorable action,

Sincerely,

Josue Frankel M. Castillo

[GKG]

Dear Sue

The Receipt Notice has 2 dates - one is the date of filing and the other is the date that received the application.
There is no PD on it. I compared it with my I-130 filed for me by my brother - In 1994 also he received the Receipt Notice and then when the application was approved he received the Approval Notice. The Approval Notice had the PD.

So.... I was wonderind if anyone could suggest a good lawyer with whom I could discuss this case.

Thanks again

GKG



Hi

On your receipt notice you should have two dates, imho

One will be a receipt date the other priorty date

What are both dates?

[Susie]

Hi

Not sure if I posted this before , but just in case I did not


Might be a good idea to contact the below?




--------------------------------------------------------------------------------


BIA Rules Favorably On "Automatic Conversion" Provision In CSPA
by Cyrus D. Mehta
In “Pushing The Envelope With The Child Status Protection Act ” (November 14, 2003), this writer explored an intriguing provision, Section 3 of the Child Status Protection Act (CSPA), codified at Section 203(h)(3) of the Immigration and Nationality Act (INA), which states:

“Retention of Priority Date – If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Section 203(h)(3) allows derivative children who cannot take advantage of the CSPA to be able to automatically convert to the “appropriate category” and allow the alien to retain the original priority date.

The prior article noted the example of a sibling of a US citizen who is sponsored under the Family-based Fourth Preference (F-4) category pursuant to INA Section 203(a)(4). The US citizen brother or sister filed an I-130 petition for the sibling parent overseas several years ago. After the passage of many years (usually, over 10 years for an F-4 petition), the sibling parent obtains permanent residence upon the visa becoming available.

Unfortunately, the derivative child may not qualify because he or she is already over 21 years of age at the time of visa availability and is unable to take advantage of the age protection formula under the CSPA. For instance, such a person is over 21 years at the time or visa availability and is unable to bring his/her age under 21 years by subtracting the number of days the I-130 petition remained pending.[1] Another circumstance under which this child can be deprived of the protection of CSPA is if he or she did not seek permanent residency within one year of visa availability. [2]

When a child is unable to take advantage of the CSPA for the above reasons, the parent who has acquired legal permanent residence may file a new I-130 petition on behalf of the child under the Family-Based Preference (2B) pursuant to INA Section 203(a)(3). The wait under the new Family-based 2B preference (adult children of permanent residents) can be about ten years, which would be intolerable after the aged-out child waited even longer, and in vain, for the F-4 petition to materialize.

Fortunately, Section 203(h)(3) suggests that the child should automatically be able to convert under the Family-based (2B) preference and retain the priority date of the old F4 petition filed by the US citizen sibling on behalf of the parent.

This interpretation was recently confirmed in an unpublished decision by the Board of Immigration Appeals (BIA). In Matter of Garcia, A789-001-587 (June 16, 2006) (http://www.bibdaily.com/pdfs/Garcia%20web1034.pdf), the BIA addressed what the “appropriate category” for the automatic conversation would be in the case of a derivative beneficiary. The Board determined that “where an alien is classified as a derivative beneficiary in the original petition, the ‘appropriate category’ for purposes of section 203(h)(3) is that which applies to the ‘aged-out’ derivative vis-à-vis the principal beneficiary of the original petition.” [3]

In Garcia, the Respondent’s parent was sponsored by her US citizen sister under the F-4 preference in 1983. Although the visa became available to the mother who adjusted her status to permanent residency in 1997, the Respondent was not able to adjust her status as a derivative as she aged out even though she had filed an adjustment of status application prior to turning 21 years. Respondent’s parent filed a Family-based 2B petition after she became a permanent resident in 1997. Respondent was placed in removal proceedings when she was well over 21 years and she renewed this unadjudicated adjustment application in removal proceedings. In order to defend herself in removal proceedings, the Respondent needed to establish that a visa number was immediately available.

The BIA agreed with Respondent’s argument that even though she had aged out, a visa was immediately available to her as she had been automatically converted to the Family 2B classification and that she had also retained the original priority date of the F4 petition, which was filed way back in 1983. Thus, a visa number was immediately available and she could, therefore, adjust status as a defense against removal. The BIA seemed to also suggest that there was no need to file a new I-130 petition under the Family 2B preference, even though one was filed in Garcia, since Section 203(h)(3) provided for automatic conversion to the appropriate category.

Although the government argued that the CSPA should not retroactively apply to the Respondent – the mother obtained legal permanent residence way before the effective date of the CSPA on August 6, 2002 and Respondent was over 21 by then – the BIA noted that the CSPA retroactively applied to any person who is a beneficiary of a petition approved before August 6, 2002 and if no final determination has been made on the adjustment application.<[4] Since the Respondent’s adjustment application had been filed in 1997 and remained pending until 2004, after the CSPA had become effective, the BIA held that Section 203(h)(3) applied to the Respondent.

This writer applauds the BIA’s decision in Garcia as it is a reasonable interpretation of Section 203(h)(3), and is also the first from a government agency after the enactment of the CSPA. However, it appears that a pending immigrant visa or adjustment of status application is required post-August 6, 2002, especially if the child aged out before August 6, 2002. In Garcia, the Respondent who had aged out before August 6, 2002, was fortuitous to have filed an adjustment application before she turned 21 and which remained unadjudicated until she was put into removal proceedings. Most will not be so fortunate.

On the other hand, Section 203(h)(3) ought to readily apply to a child who has aged out on or after August 6, 2002 even if no adjustment or immigrant visa application was filed. If the child aged out prior to August 6, 2002, he or she must have applied for an immigrant visa or adjustment of status like the Respondent in Garcia.

While Garcia is not a precedent decision, the holding can still be advanced to benefit “aged out” children who are not protected by the CSPA but could take advantage of the priority date of the original petition filed on behalf of the parent.


1 Section 203(h)(1) of the INA provides that the age of the alien at the time of visa availability can be subtracted by the number of days that the petition remained pending. If the alien child is 21 years and 3 months on the date of the visa availability, and the I-130 petition took over 3 months to get approved, that amount of time can be subtracted from the child’s age to bring him or her under the age of 21 years.
2Section 203(h)(1) further provides that the alien must seek permanent residence within one year of visa availability.
3See Mary A. Kenney, 2006 Update On The Child Status Protection Act: New Administrative Interpretations, Practice Advisory, American Immigration Law Foundation (www.ailf.org).
4 CSPA Section 8. See Also Department of State cable dated January 3, 2003 (03 State – 015049) and Immigration and Naturalization Service memo dated February 14, 2003 (HQADN 70/6.1.1).


This article originally appeared on www.cyrusmehta.com on September 15, 2006.


--------------------------------------------------------------------------------

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

[GKG]

Hi Sue, Munish and All

So I sent a letter to the Cal Service centre requesting that my daughter get the PD of my earlier application. I tracked it and it was received by them.
But 2 days back it was sent back to me on my Chicago address with a covering letter stating that I need to visit the website and do the needful - which means nothing. As there is no place there to make such a request.

So I am back to square one!!
Any hope that this law will be implemented in the right spirit?

Thanks

GKG

Dear Sue

The Receipt Notice has 2 dates - one is the date of filing and the other is the date that received the application.
There is no PD on it. I compared it with my I-130 filed for me by my brother - In 1994 also he received the Receipt Notice and then when the application was approved he received the Approval Notice. The Approval Notice had the PD.

So.... I was wonderind if anyone could suggest a good lawyer with whom I could discuss this case.

Thanks again

GKG

[Munish]

At least they wrote back to you - I didn't even get that! What did the letter state word for word? Also did the fact they sent you out a letter appear on the case status page of the USCIS website?

I was told (in my case) Vermont Service Center usually respond between 3-6 months and that I should write back in June requesting what is going on since I last wrote. I will do that without any expectation. To be fair my old law school told me it typically takes them 4 months to get errors sorted out in relation to their students.

[GKG]

Hi Munish

Well, they did respond - but whats the use? They just sent all the papers back!! So it has not affected the case status.
What do you guys suggest? Anyways I still do not have the Approval Notice for the I-130 I filed for my daughter - just Receipt Notice.
So even if I contact a lawyer they cannot do much till the case has been approved.....

And the way I see this is that its a law already in place - why are they waiting for people to fight it out?

GKG

At least they wrote back to you - I didn't even get that! What did the letter state word for word? Also did the fact they sent you out a letter appear on the case status page of the USCIS website?

I was told (in my case) Vermont Service Center usually respond between 3-6 months and that I should write back in June requesting what is going on since I last wrote. I will do that without any expectation. To be fair my old law school told me it typically takes them 4 months to get errors sorted out in relation to their students.

[Munish]

Then it might be that you have to wait until approval, but that makes no sense. I just cannot understand why they returned you papers!

Have you consulted a lawyer with experience in these matters? I would definitely do some research into lawyers with CSPA experience and have a consultation about how best to approach this. I don't whether the USCIS staff have been told to make things as difficult as possible but a good lawyer will know how to get round the bureaucratic minefield/games.

[Munish]

Sue,

I have found a most interesting blog at http://www.afsc.org/immigrants-rights/current-news/2007/05/mothers-story-in-her-own-words.html. I would read this and contact this person to see if this gives access to more age out cases. This appeared in the last few days.

[benje_ds]

Hi,

I would like to seek advise regarding CSPA if iam eligible. I wrote a letter to the embassy here in Manila, Philippines and to the NVC requesting for the evaluation of my status if iam eligible in CSPA and or RETENTION OF PRIORITY DATE.

Here is my Letter to the embassy;

Dear Sir, Madame:

This pertains to my interest in immigrating to the United States of America .

My Father, Benjamin D. Delos Santos , was the Principal Applicant (PA) petition by his Brother. In which I am one of “Derivative Beneficiary” together with my youngest brother Roulitto Delos Santos . But when the time my fathers’ priority date was finally current in March 1999. I was about turning 22 years old then; the US embassy manila rejects me to be one of derivative beneficiary. Therefore I was left behind.
(BELOW IS MY FATHER’S CASE NO#)
Case number: MNL-1982348213
Principal Applicant: Delos Santos , Benjamin Doniego
Preference Category: F4 Brother/ Sister of US Citizen
Priority Date: 22 September 1978
Foreign State Chargeability: Philippines
Date Petition Filed: 09/22/78
Date Of Approval Of Petition: 5/21/79

Therefore my father applied a separate petition for me a year after with a preference category of F2-B Unmarried Son / Daughter of permanent residence. CSPA Not yet a Law then (Without knowing the law of CSPA and or Retention of Priority date)
(BELOW IS MY CASE NO#)
Case number: MNL 2005605104
Principal Applicant: Delos Santos Jr., Benjamin Diccion
Preference Category: F2B Unmarried Son/Daughter of permanent res.
Priority Date: 04 December 2000
Foreign State Chargeability: Philippines
Date of Birth: 05 August 1977

I would like to request an appeal for an evaluation of my situation in your good office, pertaining to the Child Status Protection Act (CSPA), if I could benefits from this law and or the Retention/Recapturing of Priority Date of my Father September 22, 1978 and be able to unite with my parents and my brothers sooner than I expected. (It’s been almost 8 years from now since my parents migrate to the United States and I am SUFFERING from being apart to them).
Thank you! Hoping for your kind consideration and understanding of my situation and granting my request. (Favorable to me)

Respectfully yours,
Benjamin Diccion Delos Santos Jr.


I recieved a letter from the Embassy here in Philippines, requesting me to pay $380 (non-refundable) for the evaluation of my case and my parents in U.S. recieved also a letter from NVC informing that our concern was forwarded to the CIS for review.

I would like to seek advice of what am I going to do.?

1. To wait for the result of USCIS or?
2. To go to the embassy here in Philippines? and to pay the non-refundable fee of $380.

I would like to make an assurance because $380 is a big amount of money.

Please give me advice regarding my situation if iam eligible to the Law of CSPA and or Retention of Priority?

Thank You!

[benje_ds]

Hi,

I would like to seek advise regarding CSPA if iam eligible. I wrote a letter to the embassy here in Manila, Philippines and to the NVC requesting for the evaluation of my status if iam eligible in CSPA and or RETENTION OF PRIORITY DATE.

Here is my Letter to the embassy;

Dear Sir, Madame:

This pertains to my interest in immigrating to the United States of America .

My Father, Benjamin D. Delos Santos , was the Principal Applicant (PA) petition by his Brother. In which I am one of “Derivative Beneficiary” together with my youngest brother Roulitto Delos Santos . But when the time my fathers’ priority date was finally current in March 1999. I was about turning 22 years old then; the US embassy manila rejects me to be one of derivative beneficiary. Therefore I was left behind.
(BELOW IS MY FATHER’S CASE NO#)
Case number: MNL-1982348213
Principal Applicant: Delos Santos , Benjamin Doniego
Preference Category: F4 Brother/ Sister of US Citizen
Priority Date: 22 September 1978
Foreign State Chargeability: Philippines
Date Petition Filed: 09/22/78
Date Of Approval Of Petition: 5/21/79

Therefore my father applied a separate petition for me a year after with a preference category of F2-B Unmarried Son / Daughter of permanent residence. CSPA Not yet a Law then (Without knowing the law of CSPA and or Retention of Priority date)
(BELOW IS MY CASE NO#)
Case number: MNL 2005605104
Principal Applicant: Delos Santos Jr., Benjamin Diccion
Preference Category: F2B Unmarried Son/Daughter of permanent res.
Priority Date: 04 December 2000
Foreign State Chargeability: Philippines
Date of Birth: 05 August 1977

I would like to request an appeal for an evaluation of my situation in your good office, pertaining to the Child Status Protection Act (CSPA), if I could benefits from this law and or the Retention/Recapturing of Priority Date of my Father September 22, 1978 and be able to unite with my parents and my brothers sooner than I expected. (It’s been almost 8 years from now since my parents migrate to the United States and I am SUFFERING from being apart to them).
Thank you! Hoping for your kind consideration and understanding of my situation and granting my request. (Favorable to me)

Respectfully yours,
Benjamin Diccion Delos Santos Jr.


I recieved a letter from the Embassy here in Philippines, requesting me to pay $380 (non-refundable) for the evaluation of my case and my parents in U.S. recieved also a letter from NVC informing that our concern was forwarded to the CIS for review.

I would like to seek advice of what am I going to do.?

1. To wait for the result of USCIS or?
2. To go to the embassy here in Philippines? and to pay the non-refundable fee of $380.

I would like to make an assurance because $380 is a big amount of money.

Please give me advice regarding my situation if iam eligible to the Law of CSPA and or Retention of Priority?

Thank You!

[Munish]

:welcome: Benjy. The problem you have is that you aged out before the CSPA was enacted and the petition was finally determined before it too. Therefore, section 8 means the CSPA will not apply to you. However, there is never any harm in having ago.

Ignoring section 8, I can't see how the consulate will help you. At best they may decide you were a child under CSPA section 3. However, if you were over 21 after the CSPA calculation, they do not have the power to award you with an earlier priority date. That power lies only with the USCIS, which is why the USCIS sent it to them for review (they did this for me too).

I would check the case status of your case on the USCIS website using your USCIS number. Ask your Dad for that information. The above number you provided is a separate number provided by the NVC and is separate from the USCIS version (which usually starts with EAC). When you find it, it will confim that the USCIS has received a request from the NVC. Also post the date it was sent back to the USCIS and to which processing center so you can work out the estimated time for its consideration.

[Susie]

hi Mun,

I do know Glynnis Old very well. I will be contacting her to catch up very soon

[Susie]

Hi Benjy

I do feel that you have aged out as you were passed 21 years and had final determination on your case before enactment of cspa.

I agree $380 is a lot of money and do not understand why you have to pay this ??

Might be a good ideas to ask Senator or Congressman to work on your case. They can send e-mail to ask case status and if you can get eariler rentension of priorty date, eg, they can get answers for you , but thats about it without a change in the law

You may wish to contact Charles Wheeler who wrote the book on the CSPA, he is a lawyer and works for www.cliniclegal.org

They are not for profit and you dod not have to be catholic for them to help you, might be worth contacting them

[Susie]

Mun,

Here is clinic legal's Advocacy,

Think I will contact them on behalf of expats? what say you?







ADVOCACY AND FEDERAL LITIGATION

The Need

Certain immigration laws and policies undermine the rights and
dignity of immigrants.

CLINIC's Response

CLINIC advocates for the just treatment of immigrants, and
litigates when necessary to overturn unfair immigration policies
that can only be resolved through advocacy and litigation.

It focuses its advocacy efforts with the Department of
Homeland Security (DHS) and the Department of Justice's
Executive Office for Immigration Review. CLINIC comments on
proposed regulations, meets with government officials on
priority issues, and authors sign-on letters and articles.

CLINIC also provides policy suggestions and immigrant case
studies highlighting key issues to Migration and Refugee
Services (MRS) of the United States Conference of Catholic
Bishops (USCCB), which leads legislative efforts by the
Catholic community.

CLINIC's advocacy includes a special emphasis on detention-related policies and
practices. This is partially because CLINIC operates the nation's largest detention
representation project for asylum seekers, victims of torture and indefinite detainees.
CLINIC also organizes convenings and convocations on cutting-edge issues.

CLINIC's advocacy addresses backlogs in processing applications for immigration
benefits, alternatives to immigrant detention, extension of benefits for elderly
refugees, release under appropriate safeguards for indefinite detainees, and the
unjust prosecution of asylum seekers.

CLINIC is effective on advocacy issues because of its close collaboration with
diocesan affiliates and local partner agencies, and the direct services it provides to
detained noncitizens and immigrant religious. By sharing with government officials
individual stories drawn from the cases of its partner agencies and in-house
attorneys, CLINIC is able to illustrate problems, highlight troublesome patterns, and
give issues a face and a voice.

Sign-on letters, personal meetings with government officials, and the filing of amicus
briefs in federal court on important immigration law and policy issues are some of the
most common advocacy methods used by CLINIC.

In 2005

CLINIC:

• commented on USCIS regulations and actions regarding Requests for Evidence,
Temporary Protected Status, letters erroneously sent to greencard holders indicating
a problem with their greencards, I-90 Forms, V-visas, and other issues.
• met regularly with the DHS Enforcement Working Group to discuss border
deaths, raids in Southern California, the triple fence in San Diego, the Border Patrol’s
anti-racial profiling policy, and expedited removal.
• wrote to ICE HQ regarding individuals previously released from detention, but
later placed on ICE’s Intensive Supervision Appearance Program (ISAP). All
individuals referenced in the letter were later released from the ISAP program.
• Obtained from CBP an excerpt from the CBP Field Office Manual that explains
issuance of I-94s to refugees and derivative/following to join asylees.
• attended regular meetings with DHS Officer for Civil Rights and Civil Liberties on
issues like the government’s response to immigrant Katrina victims, and the Inspector
General’s detention audit.

CLINIC issued a press release challenging the facts DHS asserted in its own
statement regarding its motion end the Orantes injunction – which provides that when
the government arrests Salvadorans without a warrant, it must grant them specific
notice of their right to a hearing to seek asylum. The injunction also facilitates their
access to counsel and sets limits on how quickly they can be transferred out of the
jurisdiction of apprehension. The release was published on several different
websites.

[Munish]

Sue, it can never hurt to contact them, at the least very least to find out what their agenda is and what they are about - including whether they have pushed the USCIS in issuing age out regualtions and how we might go about doing the same thing.

[benje_ds]

Hi Susie and Munish,

Thanks for the response, I already did check the site of USCIS and they recieved the request to used my dads priority date last March 30, 2007. And my father recieved a letter also from NVC last march 20,2007 informing us that they forwarded our concern to USCIS.

Until now we haven't recieved any letter of what happen to our request. We are still waiting for it.

Last May 17, 2007, I recieved a letter from US embassy Philippines informing me to come to the embassy and pay $380 non refundable to pursue my application:

here below the letter of embassy philippines:

Dear Mr. Delos Santos:

We acknowledge reciept of your recent letter. We have reviewed your file and determined that you must do the following to pursue or conclude your application.

1. You are requested to come to the Embassy on any wednesday between 7:30 to 10:30 am and bring with you visa application fee of $380. please bring with you your passport for proper identification.


What am i going to do? Should i go to the embassy or wait for the reply of USCIS?

May i know Munish what happen to your case upon sending it to USCIS?

Please advice me further

[Munish]

Hi Benjy,

The USCIS sent my request to Vermont Service Center (VSC) in on March 22, 2006. They finally reviewed on January 24, 2007 of this year (the same waiting time as if it was a new I-130 F2B application). They informed me they "reaffirmed" my approval and sent it back to the NVC. I have since written to the the VSC in February clarifying I wanted to recapture the old PD which virtually everyone says I can do - including the USCIS customer service line level 2 officers. Anyway they normally take about 4 - 9 months to respond to letters (that is what I was told by the USCIS and also had the 4 month delay confirmed by my old law school who directly can deal with VSC).

I was told if I hear nothing my mid-June ask what happened to letter, citing the the recorded postal service tracking number. So this is what I am going to do.

[Munish]

However, if worse comes to worse and our interpretation of the CSPA is how the USCIS read it (and you might get lucky), then hopefully the comprehensive immigration bill works for you if it enacted. This is because of two reasons:

1) You have a Dec 2000 PD and currently Oct 96 is being processes for Phillipino beneficiaries. With the new aim to clear the backlog you visa number could start being processed from one to two years after the bill is enacted (most likely in August if it does); and
2) Each country is limited to an annual limit of 7% of the total immigrant visas issued for a single year. The bill increases it to 10% so even more Phillipino/Indian/Mexican beneficiaries can be processed each year if they are already hitting the 7% limit.

Also my PD is July 2005 at the moment so if the Menendez amendment does not go through I may lose my petition in any case because under the Senate Bill the cut off date for clearing family based immigrant visas is May 2005. If the happens, recpaturing the PD is a must, otherwise I will need to look to see if the points system is a viable alternative.

[JakeCastle]

Finally reached out and had a chance to spoke to a fellow compatriot with the exact same case... sigh again mga kababayan Jake_of_90210 sa YM po. Benjie lives pretty much in the same metropolis and it was great to finally talk with him on the phone regarding this matter. Hopefully more people can join the group.


... We're all tired of waiting...

[GKG]

Hi Benjy & Munish

Thanks for sharing your work..
Do yousuggest that I write similar letter for my daughter - to the embassy at Delhi & the NVC - for capturing the older prioriy date ?
As I told you earlier my efforts of writing to the Cal Service Centre were wasted as they just returned the letter with a page saying that I must visit the website.

Munish, how did the USCIS receive your request - was it also forwarded to them from some other embassy?

Please advise

1. Should I write or should my daughter write to Delhi embassy & NVC
2. Should I do this now or wait for the PD to be alloted - as we just have the receipt notice as yet

Thanks

Hi Benjy,

The USCIS sent my request to Vermont Service Center (VSC) in on March 22, 2006. They finally reviewed on January 24, 2007 of this year (the same waiting time as if it was a new I-130 F2B application). They informed me they "reaffirmed" my approval and sent it back to the NVC. I have since written to the the VSC in February clarifying I wanted to recapture the old PD which virtually everyone says I can do - including the USCIS customer service line level 2 officers. Anyway they normally take about 4 - 9 months to respond to letters (that is what I was told by the USCIS and also had the 4 month delay confirmed by my old law school who directly can deal with VSC).

I was told if I hear nothing my mid-June ask what happened to letter, citing the the recorded postal service tracking number. So this is what I am going to do.

[Munish]

Hi GKG,

I made a mistake in my post. I meant to say the NVC (and not the USCIS) sent my request to the Vermont Service Center on March 22, 2006. I wrote to the NVC after the USCIS approved my petition so there would be little point for you in writing the letter to the NVC as they have not yet received the approved petition from the California Service Center.

However, I do think it would be wise to seek professional advice from an immigration attorney. Where you failed to talk directly to the USCIS they may succeed.

I seen no harm in writing to the Delhi Embassy. While I don't think this will help, it is at least worth finding out what the response will be.

[benje_ds]

Hi GKG and Munish,

Last night I contacted the USCIS to make a follow-up of my request to used the PD of my Father and they advise me to wait with-in 120 days for them to have the result. Furthermore, I told that i just recieved a letter coming fom USembassy Philippines informing me to come to the embassy and pay $380 for visa appliction fee. I am asking an advise (USCIS) of what am i going to do? Should i wait for the result?or should i go to the embassy?. USCIS told me that they cannot give advise regarding this matter but u can go to the embassy and pay the amount and let them know that you have this pending request from this office(USCIS).

On Wednesday, June 13,2007, I'll be going to the embassy. Hoping for favorable result.( Please pray for my Success)

GKG, I think in my opinion you should write the NVC ask them to use the old PD to your Daugther. You should do it now before its too late , Let them know(NVC) that you would like to avail the Retention of PD before they can give you a new priority date, because if you dont do anything they will assign a new PD to your Daugther.

In my case I dont know that there is an existing CSPA law until a relative of mine told me just this year month of February 2007.
I recieved an approval notice last April 4, 2005( CSPA Exist already). IF i know that CSPA law existing already in August 2002, I should have write the NVC to assign a PD using the PD of my father rather than giving me a new PD but its too late for me. So now, the least i can do it to request for an evaluation of my case.

Thanks Jake and Munish for keeping in touch with me. I am so sorry jake for not responding to ur text last night. I am about to sleep. And goodluck also to you!

[Munish]

Hi All,

Benje ds, if GKG wrote to the NVC, they would have no record of the petition because the California Service Center is still dealing with the initial application and it has not yet been approved and therefore forwarded to the NVC yet (unless I have this wrong GKG).

Good luck with the Embassy.

You did everything correctly. The case of your Parents was already dealt with before the CSPA so you would have had to file a new petition in any case. Even if you knew about the CSPA in 2002 and requested the old PD, the NVC would have only then done the same thing as they are doing now, namely send you case to the USCIS for review. They do not have the authority to do it. At that time the USCIS were interpreting the CSPA very narrowly and not giving earlier priority date to F2B principal beneficiaries who were previously F4 derivative beneficiaries. This changed in 2006 with the Garcia case, but it is not unfortunately not binding, which is why many have had to go to court for the remedy.

So don't beat yourself up about what you didn't do because the outcome would be no different. Hopefully the Embassy can help you.

As for the 120 day limit, just bear in mind that in my case it took 10 months to be reviewed but you may be lucky. They should take 120 days to respond to requests, but they may view this request in the same was as a new I-130 which is what they probably did with mine, and why it took 10 months before a decision was made. I probably write 2-3 times in the interim but this made no difference.

[benje_ds]

Hi Munish,

May i know what was the Decision of your case? what do you mean by " "reaffirmed" my approval and sent it back to the NVC".?

thanks

[Munish]

The case was approved in January 2006. In January 2007, after the second review, they said on [date], "we mailed a notice to you reaffirming the approval of this case and returned the case to the Department of State for visa processing..."

However, it was returned with the same priority date of July 2005 and not 1991 as should have been done pursuant to the CSPA, section 3 (Immigration and Nationality Act, section 203(h)(3)).

I wrote to the USCIS again in February to explain this and when the 120 date is passed (later this month) I will write again asking what was done in response as this was instructed to me by the USCIS on the phone.

[benje_ds]

Hi Munish,

Your case is on or after August 2002. But still they give you negative result. Mine is before and I age out also before August 2002, I have this slim chance of acquiring the CSPA and or Retention Of Priority Date.?!! ( I wish and hope not). But when you based it on Maria Garcia Case, we have the same situation. The only difference is that she was in the US during the litigation seeking for adjustment of status.

I hope that the second result in your case will be sucessfull. Please post the result here. So that we can conclude to ourselves who ever have the same situation with regards to your case.

[Munish]

Will do, but my feeling is the USCIS will not respond to my letter forcing me to take legal action. At this point am not that desparate to go down that route so we'll see.

My Parent's case was decided in 2004 (after the enactment of the CSPA) even though I aged out before and so section 8 should not eliminate me.

There are Board of Immigration cases that could help you and Jakecastle, so even though you aged out before the CSPA and despite the fact your Parent's obtained green cards before the CSPA, Garcia and Rodolfo Avila-Perez are particularly interesting.

Garcia involved a situation where because she was in the USA, an adjustment of status was filed before the the CSPA, but finally determined after, and so she was able to obtain the earlier priority date. As you know, her Parent's F4 petitioned was finally determined before the CSPA was enacted, but because there was still an an adjustment of status at issue in relation to Garcia, the BIA held section 8 did not exclude her.

The second case, Rodolfo Avila-Perez, I find very interesting because her an adjustment of status was made after the CSPA was enacted,even though it could have been done beforehand. However, I should mention this does not involve a derivative beneficiary and applies to a child, but there is no reason why it should not be applied in the same way to a person who aged out for CSPA purposes.

Basically you should consider coming to the USA on a nonimmigrant visa and adjust status based on the approved petition of your Parents. It's a long shot and there is no guarantee it would work, but what is certain is that the BIA and Courts have been applying the CSPA very expansively, which works in your favour.

The problem is the Phillipino Embassy would very unlikely grant a nonimmigrant visa with a pending immigrant petition, especially as other members have had very bad experiences with that embassy. If the new legislation comes through consider the viability of a H1-B or STEM advanced degree as options as well.

Anyway let's see what happens in response to your current efforts.

[GKG]

Hi Benje ds and Munish

Thaks for the resposes

Yes I think VC will say we do ot have the case - but I ca still try the wayBenje ds suggests - no harm

Thaks

Will keep you iformed of the results





Hi All,

Benje ds, if GKG wrote to the NVC, they would have no record of the petition because the California Service Center is still dealing with the initial application and it has not yet been approved and therefore forwarded to the NVC yet (unless I have this wrong GKG).

Good luck with the Embassy.

You did everything correctly. The case of your Parents was already dealt with before the CSPA so you would have had to file a new petition in any case. Even if you knew about the CSPA in 2002 and requested the old PD, the NVC would have only then done the same thing as they are doing now, namely send you case to the USCIS for review. They do not have the authority to do it. At that time the USCIS were interpreting the CSPA very narrowly and not giving earlier priority date to F2B principal beneficiaries who were previously F4 derivative beneficiaries. This changed in 2006 with the Garcia case, but it is not unfortunately not binding, which is why many have had to go to court for the remedy.

So don't beat yourself up about what you didn't do because the outcome would be no different. Hopefully the Embassy can help you.

As for the 120 day limit, just bear in mind that in my case it took 10 months to be reviewed but you may be lucky. They should take 120 days to respond to requests, but they may view this request in the same was as a new I-130 which is what they probably did with mine, and why it took 10 months before a decision was made. I probably write 2-3 times in the interim but this made no difference.

[Munish]

Yes I think VC will say we do ot have the case

I don't undertand this line.

but I ca still try the wayBenje ds suggests - no harm

Yes, interesting to see what happens.

[benje_ds]

hi to all concern,

I went to the US embassy yesterday to apply for CSPA, But unfortunately I was denied.

Here's the Story:

I paid the visa application fee of $380( non- refundable). After paying the fee, I waited for my turn to be interviewed by the consul. Entering the room of consul and sit on the chair i was ask to raise my rigth hand for pledging. after that, She read the result of my evaluation The consul told me that i am ineligible for CSPA and I reason out, I think mam i am qualified for the CSPA because based on the computation of age i am below 21 years old. She look again the paper she was holding and gave me the result of age they computed 20 years 11 months and 17 days. So see iam still qualified Mam. The consul stand up and go to other consultants. they review it again. then she came back to me and i ask her what was the basis of my refusal. She said, My approved case was before the enactment of CSpA. CSPA only applies to those approved cases ON OR AFter Aug. 2002. and I said "no", it applies also to the approved cases before the enactment of CSPA. ANd I will show you a copy of that ammended Law and this is one of the expamle The case Of Maria Garcia. She read the copy I gave and then told me that she knows that already but until now they dont have guidelines to the BEFORE augt 2002 cases.They are still waiting for the memo. IF we recieve a new memo regarding the before case we will contacted you again " She said".

Before leaving the consul, i told her, You know what mam, i send a request letter to your office citing my situation that my DAD's case was approved in 1999, why this embassy requested me to come and to pay $380. and telling me rigth now that the grounds for my disqualification was my approved case of 1999 before the enactment of CSPA. JUST upon reading my situation you can say it rigth away that i am not qualified. "NO need to come" And she Reply " I DONT KNOW".

"I lost in a Gamble immigrant GAME"

MY only last hope is the USCIS result.

[benje_ds]

hi again,

Is there anyone who could give advice of what would be my next step? Where to appeal?

thank you!

[JakeCastle]

Can benje make an appeal? guys help pls...

[Susie]

Hi

Sorry for not replying, have recently become a nan for the first time and baby has been very sick, now making progress slowly but nicely

I will need to read all the posts I have missed and get back to you asap

[j0emV]

I doubt there is an appeals process at the consular level, unlike AOS. I think they give you like 7 days to produce contrary evidence or something strange like that? I think I saw something like that in the FAM.

Since you're not in the US, it's kind of tricky. The only thing I can think of is that if you were in the US, to have your father submit an I-130/I-485 on your behalf requesting the original priority date before the fee structure changes in July. Since youre not in the country then it becomes complicated. Even though they don't have guidance on the retention of priority date statute, they can contact the state department about cases such as these for an "Advisory opinion" is what I think they call it. You're obviously eligible to at least retain his priority date and since it would be current, immigrate faster but unfortunately it's very hard to negotiate with the consulates.

I just looked over the I-130 form and it seems that you can file it for a relative that's not yet in the US. I think you should have your father submit that with a full letter requesting to retain his priority date for your I-130 and he should do it before the end of July. The USCIS is increasing the filing fees at the end of July so it's best he do it now. In fact, i'm having my father do the same thing even though we've already wasted $200 on the I-824 mess. On the form he can list your nearest consulate to be notified of the approval and once it is approved and shows the correct original priority date, they should contact you for another interview. This time there will be no CSPA crap involved and so they should have no problems approving your request as long as he's able to get the USCIS here in the states to approve the I-130 with the original priority date. It may take him going back and forth with the USCIS but I don't think he will have that hard of a time getting them to comply.

This is why i'm not leaving the country to do my visa processing, i'm staying right here illegal or not.