Does CSPA covers my case??? please help

[irfan85 0]

Following are the case details which was filed by my uncle

Visa: F4 Category

Date Petition Filed: 08 Apr 1983 (Priority Date)

Date Petition Approved: 14 Dec 1983

DOB: 31 Aug 1985

Current Date: 1994 (my calculations, found visa bulletin on net from 1995)

Case number at NVC: ISL2010******

Country of Origin: Pakistan

the petition is still in process.

As I was born after the petition was filed, my birth was not updated on USCIS records, so my visa invoice didn’t come. In 2011, I send a mail to NVC to update their records and was I eligible on CSPA basis as I have age-out till NVC contacted us, for which they asked for my Birth Certificate copy and Passport copy. I email them both as soon as I got my passport. After which they send me my visa fees invoice (making me eligible), which was paid by my uncle.

When it came for the time to submit DS-230, they asked for my parents form and not for me. I asked my uncle to inquire about it. The NVC call centre said the contractor had made a mistake in making me eligible and CSPA does not apply on me.

Then my uncle send another mail to review my case on CSPA basis, in which they remain firm on their prior reply and they said that i m not eligible under CSPA as the child is not covered under CSPA

Now I want to inquire about following things,

Does my case come under CSPA or it is not really covered by CSPA? And if I come under CSPA what should be the process further?

Would I be able to retain priority date? And

As according to my calculations I do come under CSPA by calculating my age I’m still 8 years old…

If any one of you needs more info rgding my case i ll be glad 2 provide it

Edited July 31, 2011 by irfan85

[miesha 0]

i'm no expert...but...if they say it doesn't apply then it doesn't apply...

also..as per my knowledge..cspa is applied for the time between filing and approval of the petition...which in ur case is around 8 months only ...(maybe u entered wrong),,,

[miesha 0]

i'm no expert...but...if they say it doesn't apply then it doesn't apply...

also..as per my knowledge..cspa is applied for the time between filing and approval of the petition...which in ur case is around 8 months only ...(maybe u entered wrong),,,

i'm no expert...but...if they say it doesn't apply then it doesn't apply...

also..as per my knowledge..cspa is applied for the time between filing and approval of the petition...which in ur case is around 8 months only ...(maybe u entered wrong),,,since u claim that ur cspa age is 9...

u can check this out ...http://www.visajourney.com/forums/topic/110679-child-aging-out-cspa-may-help/

hopefully things will work out..

[Jojo92122 1,924]

Following are the case details which was filed by my uncle

Visa: F4 Category

Date Petition Filed: 08 Apr 1983 (Priority Date)

Date Petition Approved: 14 Dec 1983

DOB: 31 Aug 1985

Current Date: 1994 (my calculations, found visa bulletin on net from 1995)

Case number at NVC: ISL2010******

Country of Origin: Pakistan

the petition is still in process.

As I was born after the petition was filed, my birth was not updated on USCIS records, so my visa invoice didn’t come. In 2011, I send a mail to NVC to update their records and was I eligible on CSPA basis as I have age-out till NVC contacted us, for which they asked for my Birth Certificate copy and Passport copy. I email them both as soon as I got my passport. After which they send me my visa fees invoice (making me eligible), which was paid by my uncle.

When it came for the time to submit DS-230, they asked for my parents form and not for me. I asked my uncle to inquire about it. The NVC call centre said the contractor had made a mistake in making me eligible and CSPA does not apply on me.

Then my uncle send another mail to review my case on CSPA basis, in which they remain firm on their prior reply and they said that i m not eligible under CSPA as the child is not covered under CSPA

Now I want to inquire about following things,

Does my case come under CSPA or it is not really covered by CSPA? And if I come under CSPA what should be the process further?

Would I be able to retain priority date? And

As according to my calculations I do come under CSPA by calculating my age I’m still 8 years old…

If any one of you needs more info rgding my case i ll be glad 2 provide it

The CSPA did not exist in 1995 when the PD for your parent became current so you can't be cover by a law that did not exist until 2001. In addition, a beneficiary must seek a visa or seek to adjust status within one year of the PD being current to be covered by CSPA.

Edited August 1, 2011 by Jojo92122

[Jojo92122 1,924]

Now I want to inquire about following things,

Does my case come under CSPA or it is not really covered by CSPA? CSPA does not apply to you because your parent's PD became current in 1995 and CSPA did not exist until 2001. And if I come under CSPA what should be the process further?

Would I be able to retain priority date? No. There is no law that would allow you to retain your parent's PD. And

As according to my calculations I do come under CSPA by calculating my age I’m still 8 years old… You are basing this calculation on the false premise that CSPA existed in 1995 when your parent's PD became current.

If any one of you needs more info rgding my case i ll be glad 2 provide it

[Sirach123 2]

Following are the case details which was filed by my uncle

Visa: F4 Category

Date Petition Filed: 08 Apr 1983 (Priority Date)

Date Petition Approved: 14 Dec 1983

DOB: 31 Aug 1985

Current Date: 1994 (my calculations, found visa bulletin on net from 1995)

Case number at NVC: ISL2010******

Country of Origin: Pakistan

the petition is still in process.

As I was born after the petition was filed, my birth was not updated on USCIS records, so my visa invoice didn’t come. In 2011, I send a mail to NVC to update their records and was I eligible on CSPA basis as I have age-out till NVC contacted us, for which they asked for my Birth Certificate copy and Passport copy. I email them both as soon as I got my passport. After which they send me my visa fees invoice (making me eligible), which was paid by my uncle.

When it came for the time to submit DS-230, they asked for my parents form and not for me. I asked my uncle to inquire about it. The NVC call centre said the contractor had made a mistake in making me eligible and CSPA does not apply on me.

Then my uncle send another mail to review my case on CSPA basis, in which they remain firm on their prior reply and they said that i m not eligible under CSPA as the child is not covered under CSPA

Now I want to inquire about following things,

Does my case come under CSPA or it is not really covered by CSPA? And if I come under CSPA what should be the process further?

Would I be able to retain priority date? And

As according to my calculations I do come under CSPA by calculating my age I’m still 8 years old…

If any one of you needs more info rgding my case i ll be glad 2 provide it

Please review your case details again so others can give you good advises also:

1. Your priority date may not be the date when your parents petition was filed as you indicated

2. Current Date: 1994. What is this? Did your priority date became current then? What did your parents do about it?

3. When was your ( parents) priority date actually became current?

[irfan85 0]

Please review your case details again so others can give you good advises also:

1. Your priority date may not be the date when your parents petition was filed as you indicated

2. Current Date: 1994. What is this? Did your priority date became current then? What did your parents do about it?

3. When was your ( parents) priority date actually became current?

basically its not my priority date, its my parents Priority date of visa and date of approval both are provided by NVC.(I am a derivative beneficiary)

our case is a bit complicated as we didn’t update them on our change of address by both petitioner and principal applicant (as we have forgotten about immigration), so we got a form DS3020 in November, 2010 as NVC contacted us then (after searching for our address) ,on which choice of agent plus update of address by mail was done.

First, usually in Pakistan at that time it took 10 or 11 years for priority date to become current so I based my calculation on it, second our case is still in process as my parents will be called for visa interview soon as documents have been submitted.Although the petition approval date is in Dec 1983 (according to NVC) but still my parents are yet to receive their visa. So this is making me confuse,

Is current date specific to case or does it apply to everyone as according to visa bullettin???

I asked from NVC about our case priority date becoming current instead of which they replied to submit civil documents .

[Sirach123 2]

basically its not my priority date, its my parents Priority date of visa and date of approval both are provided by NVC.(I am a derivative beneficiary)

our case is a bit complicated as we didn’t update them on our change of address by both petitioner and principal applicant (as we have forgotten about immigration), so we got a form DS3020 in November, 2010 as NVC contacted us then (after searching for our address) ,on which choice of agent plus update of address by mail was done.

First, usually in Pakistan at that time it took 10 or 11 years for priority date to become current so I based my calculation on it, second our case is still in process as my parents will be called for visa interview soon as documents have been submitted.Although the petition approval date is in Dec 1983 (according to NVC) but still my parents are yet to receive their visa. So this is making me confuse,

Is current date specific to case or does it apply to everyone as according to visa bullettin???

I asked from NVC about our case priority date becoming current instead of which they replied to submit civil documents .

Your CSPA age is around 24 years old way beyond the 21 yrs of qualifying age so you AGED OUT. I assume your parents PD became current in 2010. You can't count on 1994 because your family did nothing about your case then.

[Jojo92122 1,924]

Your CSPA age is around 24 years old way beyond the 21 yrs of qualifying age so you AGED OUT. I assume your parents PD became current in 2010. You can't count on 1994 because your family did nothing about your case then.

No. His parent's PD became current in 1995. His current age is 26. He has aged out as a derivative beneficiary.

To take advantage of CSPA, he must have sought to acquire an immigration visa within one year of his parent's PD becoming current. He did not do this, so CSPA will not apply to him. Accordingly, he does not have a CSPA age.

Visas became available to his family in 1995, but INS could not locate because neither the petitioner or the beneficiary informed INS of their new addresses after moving. USCIS was able to contact them in 2010.

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http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextoid=10409fed09eb9110VgnVCM1000004718190aRCRD

Questions and Answers: USCIS Issues Revised Guidance on the Applicability of the Child Status Protection Act (CSPA)

Introduction

The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. The Act permits an applicant for certain benefits to retain classification as a “child,” even if he or she has reached the age of 21.

Since its enactment on Aug. 6, 2002, USCIS provided several field guidance memoranda regarding the adjudication of immigration benefits in accordance with the CSPA. A memo issued April 30, 2008 made some substantive changes to how USCIS applies CSPA.

Questions & Answers

Q: What is the Child Status Protection Act (CSPA)?

A. A “child” is defined in the Act as an unmarried person under the age of 21. Prior to the enactment of the CSPA on August 6, 2002, anyone who turned 21 at any point prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many people were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect an individual’s immigration classification as a child when the person aged out due to excessive processing times.

Q. How does CSPA work?

If you are…

Immediate Relative of a Naturalized U.S. Citizen

Preference Classification for Permanent Residence or Derivative

The child’s age freezes at time the visa petition is filed (Form I-130). If a child becomes an immediate relative through the petitioner’s naturalization or the termination of the beneficiary’s marriage while the beneficiary is under 21, the child’s age freezes on the date such action occurred.

CSPA allows the time a visa petition was pending to be subtracted from an applicant for permanent residence’s biological age so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

Q. What are the general requirements to benefit from CSPA?

A. Several requirements must be met to be eligible for CSPA age out protection:

The child must have been the beneficiary (principal or derivative) of a pending or approved visa petition on or after August 2, 2002.

The child must not have had a final decision on an application for adjustment of status or an immigrant visa before the date of enactment of the CSPA.

The child must “seek to acquire” permanent residence within one year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved (if a visa was already available in that category).

Q. Are people who did not file an application for permanent residence within one year of the visa becoming available still able to apply under CSPA?

A. Generally, no. However, because of the recent change in interpretation of the CSPA, USCIS will permit certain individuals to apply outside of this one year period.

Individuals that are eligible to apply for permanent residence under CSPA after one year of a visa becoming available include:

Beneficiaries (or derivatives) of a visa petition that was approved prior to August 6, 2002 AND

had not received a final decision on an application for permanent residence based on that visa petition prior to August 6, 2002 AND

the visa became available on or after August 7, 2001 AND

who met all of the other eligibility requirements for CSPA (see above)

Q. What can I do if I had an application for permanent residence that was denied because I aged out?

A. If you would have been eligible for CSPA protection under the revised guidance, you can file a Motion to Reopen/Reconsider with the office that denied the application with no fee if you meet the following requirements:

you were the beneficiary of a visa petition that was approved prior to August 6, 2002 and filed for permanent residence after August 6, 2002 AND

you would have been considered a child under CSPA requirements (see above) AND

you applied for permanent residence within one year of visa availability AND

your application was denied solely because you aged out

When an application is denied, the applicant receives a written decision that cites the section of law and describes why the alien is not eligible for the benefit. An application may be denied for one reason or for multiple reasons. If an application was denied for more than one reason including aging-out or for any reason other than for aging out, the alien is not eligible to file a motion to reopen under the new guidance.

Q. Is there a deadline to file under the new guidance?

A. No.

[Sirach123 2]

Jojo

What I said is a short form of the long form you have which has the same substance. CSPA is not really a big deal to understand. Initially you said he is not covered because CSPA was enacted in 2002 but the fact is he is entitled even after 2002 if he did not age out. Now both of us agreed that he has aged out so what is the big NO in my initial reply.

[Jojo92122 1,924]

Jojo

What I said is a short form of the long form you have which has the same substance. CSPA is not really a big deal to understand. Initially you said he is not covered because CSPA was enacted in 2002 but the fact is he is entitled even after 2002 if he did not age out. Now both of us agreed that he has aged out so what is the big NO in my initial reply.

Technically you are wrong because his CSPA age is not over 21. Go to the law and do the calculations. Under the CSPA (if it existed in 1995), his CSPA age would be 8.

In applying the law, one must be concise. Saying his CSPA age is over 21 to explain his ineligibility for a visa is incorrect. While the conclusion is correct based on the results, it is not the correct reason.

Please tell me how it's a "fact . . . he is entitled even after 2002" when the CSPA law is clear that a beneficiary MUST seek to acquire a visa after the PD became current for CSPA to apply? His parent's PD became current in 1995. He would have had to seek a visa within a year or he is not covered. So how is he entitled to CSPA protection in 2002?

[Sirach123 2]

Technically you are wrong because his CSPA age is not over 21. Go to the law and do the calculations. Under the CSPA (if it existed in 1995), his CSPA age would be 8.

In applying the law, one must be concise. Saying his CSPA age is over 21 to explain his ineligibility for a visa is incorrect. While the conclusion is correct based on the results, it is not the correct reason.

Please tell me how it's a "fact . . . he is entitled even after 2002" when the CSPA law is clear that a beneficiary MUST seek to acquire a visa after the PD became current for CSPA to apply? His parent's PD became current in 1995. He would have had to seek a visa within a year or he is not covered. So how is he entitled to CSPA protection in 2002?

Look at their visa case it's 2010xxxx. Presumably they reapplied. Just for the sake of discussion. The family PD became current in 2006 and let's say he was 21.5 yrs old already. Since their petition took 9 months at USCIS , do you think he can't be entitled to CSPA?

[Sirach123 2]

It is as simple as this: if you age out before CSPA came into law you are not covered but if not yet then you are covered, that is what CSPA is all about.

[Jojo92122 1,924]

Look at their visa case it's 2010xxxx. Presumably they reapplied. Just for the sake of discussion. The family PD became current in 2006 and let's say he was 21.5 yrs old already. Since their petition took 9 months at USCIS , do you think he can't be entitled to CSPA?

The case number is 2010xxxx because that is when the NVC assigned a case number to it. You are presuming a lot. You presume they reapplied. Read the OP's posts. He states that the petitioner moved and did not update his address with INS. In addition, the beneficiary moved and did not inform INS. The OP stated that they forgot about the case. The PD became current in 1995. It took INS, then USCIS, about 15 years to locate and contact them. The parents can still apply for visas because the PD is still current. Derivative beneficiaries who aged out are not eligible. Why would you presume they reapplied when the OP's own posts states otherwise?

If you change the facts like you did, then of course he would be entitled to CSPA under your new facts. However, these are facts that you are making up.

If I change the facts, I can make him eligible for a visa under CSPA.

Under the facts presented by the OP, he is not entitled to CSPA protection.

Edited August 2, 2011 by Jojo92122

[irfan85 0]

thank you guys for discussing my case, and making it clear to me that "visa available" means when the visa date comes current according to bulletin and not when the visa comes into the hand of beneficiary and all other related questions. Finally getting it that my case is not covered under CSPA

Now what will be the process for me as soon as i my parents get permanent residence.

Thanks in advance