CSPA? Daughter turned 21

[JoAnn3 0]

I am happy to say that I just got approved for a Green card yesterday with my husband at the AOS 245i interview. My problem is that my daughter who turned 21 years old in November of 2010 was not approved. The officer just gave a letter saying that they will have to review her file again and she should receive her decision in 60 days. When she was interviewing us she was asking my daughter how is it possible that she is trying to get a green card when she is over 21. And then she asked for our EAD cards and when my daughter gave the officer hers, the officer was surprised that she was able to receive one. According to her my daughter is not able to be a derivative beneficiary since she "aged out". After the officer spoke with her supervisor, they told my daughter she needs to wait for a decision in a mail. I'm pretty confused, why would USCIS accept my daughter's application to Adjust Status in US, and also gave her authorization to work if she was "supposedly" not a derivative beneficiary or just not able to adjust for some other reason? My other 2 daughters who were already aged out ( they are 25&26 yrs old) were rejected because their I-130 date was not established. I don't know what USCIS meant by that and also my lawyers didn't know either.

My AOS case was send on Sept. 27th,2010. My daughter at the time was under 21. She turned 21 on Nov. 2010, and we received our interview letter for January 20th, 2011 which was yesterday, so yes she is over 21 but when we first send in the AOS case, my daughter was under 21. I thought CSPA would protect her. My case was through my US citizen sister, 203 (a) (4) INA, who petitioned I-130 for me about 10-11 years ago. I was able to adjust status through 245i which I had to pay penalty for.

Can someone please tell me if my daughter is really not a derivative beneficiary? And so she will not be able to adjust status?

Thank you for taking your time and reading my story.

[JimVaPhuong 4,863]

Unfortunately, you are the victim of conflicting immigration laws.

You are eligible under 245(i) because there was a petition filed on your behalf before the cutoff date. This means your daughters are eligible as derivatives.

Unfortunately, in order to be covered by CSPA they would need to have been derivatives of a petition pending or approved AFTER August 2, 2002. This is after the 245(i) window. Furthermore, they must seek to acquire permanent residence within a year of a visa number becoming available.

My understanding is that they aged out, and aren't covered by CSPA. You need to file a separate petition for them, which is probably what the IO was referring to when they mentioned the I-130 date. If they are unmarried then you can file an I-130 for an F2B visa number. If the numbers stay at their current levels then you're looking at about 8 years before their priority date becomes current. That goes down to about 6 years if you become a US citizen.

If they plan on remaining in the US until their priority dates become current then you should understand that they must be lawfully present in the US in order to adjust status. If they aren't lawfully present then they'll have to leave the US and apply for a visa at a US consulate abroad. If they've accumulated more than 180 days of overstay then they'll face a 3 year bar from the US. If they've overstayed by more than a year then they'll face a 10 year bar.

[JoAnn3 0]

JimVaPhuong,

Thank you for answering.

Anyways my I-130 petition was pending in August of 2002 and was approved after in 2009.

When I check the CSPA calculations, all of my daughters are under 21 yrs old.

But the problem is, does the CSPA apply to 203 (a)(4) derivative beneficiaries?

I know CSPA applies to Family Based GC,I-130's, I just don't know if it applies to its 4th preference ? ( petition for sister or brother of USC)

[JimVaPhuong 4,863]

JimVaPhuong,

Thank you for answering.

Anyways my I-130 petition was pending in August of 2002 and was approved after in 2009.

When I check the CSPA calculations, all of my daughters are under 21 yrs old.

But the problem is, does the CSPA apply to 203 (a)(4) derivative beneficiaries?

I know CSPA applies to Family Based GC,I-130's, I just don't know if it applies to its 4th preference ? ( petition for sister or brother of USC)

Geez, yeah, ok. This stuff is getting so complicated it's making my head hurt.

If I understand the act correctly, for family preference categories they will deduct the time the petition was pending from the child's biological age.