Visa Category moved from F2A to F2B???

[ivory2012 0]

Hello!

I am a LPR and petitioned my son (I-130) in October 2010 when my son was 20. His petition was approved by USCIS in April 2011 (this time he was 21yo) and was forwarded to NVC. Initially, NVC had my son under F2A Category, which has a lesser wait time. As of November 2011, NVC moved him to F2B Category without even clearly notifying me (Petitioner) nor my son (Beneficiary).

Is this normal? Can NVC change your Visa Category? Now we are looking from a very promising 4 months of wait time to 11 years or more (F2B barely moving, one month advancement for every 2 months of Visa Bulletin)

What is the role of Child Status Protection Act in this situation? Looks like to me USCIS did apply CSPA by approving his petition after he turned 21 (he was 21 years and 21 days old), but not NVC???

Please help.

[Oksana & Max 94]

CSPA is a little bit weird while it does help in aging out. The main question is how did you obtained your LPR? I am not certain, but I think if it was obtained using K-1 Visa, you are no longer can use CSPA for your child, unless you are a US Citizen

Edited March 26, 2012 by Oksana & Max

[ivory2012 0]

I would try to contact NVC and point them that your child should be protected under CSPA.

Thank you for your response.

We did call NVC numerous times and all they can say is contact inquiry@nvc with any concerns.

[Deputy Purple 1,294]

Looks like to me USCIS did apply CSPA by approving his petition after he turned 21 (he was 21 years and 21 days old), but not NVC???

Actually I'd say that USCIS didn't need to even consider CSPA. They simply needed to determine if there exists a Petition-able Relationship between the Petitioner and Beneficiary but they do not determine what Visa category the beneficiary would fall under.

If I understand CSPA it only comes into play AFTER the petition is approved. So If your petition was approved 21 days prior to your sons birthday then CSPA could lock his immigration age at 21 days short of 21 (which wouldn't really help him as he'd never get to the point of Visa issuance in 21 days).

Example:

Petition is approved when child is 20 yrs & 6 months old. As Child of LPR they must wait for PD to become current. This wait takes 3 years. Child is now 23 yrs & 6 months but immigration age was frozen at 20 yrs and 6 months so child has 6 months to completed NVC and consulate processing then land in the US.

In short, by my (very limited) understanding of CSPA it doesn't apply to your Son's case as the petition wasn't approved prior to his 21st birthday.

[ivory2012 0]

Actually I'd say that USCIS didn't need to even consider CSPA. They simply needed to determine if there exists a Petition-able Relationship between the Petitioner and Beneficiary but they do not determine what Visa category the beneficiary would fall under.

If I understand CSPA it only comes into play AFTER the petition is approved. So If your petition was approved 21 days prior to your sons birthday then CSPA could lock his immigration age at 21 days short of 21 (which wouldn't really help him as he'd never get to the point of Visa issuance in 21 days).

Example:

Petition is approved when child is 20 yrs & 6 months old. As Child of LPR they must wait for PD to become current. This wait takes 3 years. Child is now 23 yrs & 6 months but immigration age was frozen at 20 yrs and 6 months so child has 6 months to completed NVC and consulate processing then land in the US.

In short, by my (very limited) understanding of CSPA it doesn't apply to your Son's case as the petition wasn't approved prior to his 21st birthday.

I totally understand your idea.

But I think CSPA should really come into play because it 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.

So, if he was approved 21 days after he turned 21, and taking into consideration the CSPA's role which is deducting the time it took to process the petition from his age when the petition was approved (which was Oct 2010 to Apr 2011=5.5 months) then he would only be 20 years and 7 months.

Am I understanding this correctly or am I just being biased and hopeful???

Check out this write-up about CSPA on USCIS website:

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

[aaron2020 11,651]

Hello!

I am a LPR and petitioned my son (I-130) in October 2010 when my son was 20. His petition was approved by USCIS in April 2011 (this time he was 21yo) and was forwarded to NVC. Initially, NVC had my son under F2A Category, which has a lesser wait time. As of November 2011, NVC moved him to F2B Category without even clearly notifying me (Petitioner) nor my son (Beneficiary).

Is this normal? Can NVC change your Visa Category? Now we are looking from a very promising 4 months of wait time to 11 years or more (F2B barely moving, one month advancement for every 2 months of Visa Bulletin)

What is the role of Child Status Protection Act in this situation? Looks like to me USCIS did apply CSPA by approving his petition after he turned 21 (he was 21 years and 21 days old), but not NVC???

Please help.

The case for your son is proceeding normally. There are some misconceptions on your part.

USCIS does not notify you when your son ages about aging out from the F2a category to the F2b category. It is presumed that you should know that a beneficiary in the F2a category who turns 21 automatically transfer to the F2b category. That is the normal process. You know when your son turns 21, so USCIS expects you (or your lawyer) to know this.

While your son started out in the F2a category, he no longer qualifies for that category when he turns 21. That is why there is the F2b category, LPR petitioning an unmarried child over age 21.

For CSPA, age is determined when the PD becomes current. There is no protection for age when you file. For family based preference cases (F1, F2a, F2b, F3, and F4), CSPA age is determined when the PD becomes current. It would be different if you were a US citizen petitioner and your son was an Immediate Relative - age freeze in these cases when the I-130 is filed. It is completely different for family based preference cases (F1, F2a, F2b, F3, and F4).

Your son is over 21, so his case is now an F2b (this is the law). For your son, CSPA can only help him if 1) his PD becomes current in the F2a category, AND 2) his CSPA age is under 21. To determine his CSPA age, you can Google "CSPA calculator" or use my rough estimate; CSPA age = (Real age) - (time it took USCIS to approve the I-130). If it is under 21, then he qualifies for CSPA relief and will be processed in the F2a category. If it is over 21, then CSPA will not benefit him and he stays in the F2b category.

Confused? Yes, it's very confusing.

Edited March 26, 2012 by aaron2020

[Deputy Purple 1,294]

I totally understand your idea.

But I think CSPA should really come into play because it 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.

So, if he was approved 21 days after he turned 21, and taking into consideration the CSPA's role which is deducting the time it took to process the petition from his age when the petition was approved (which was Oct 2010 to Apr 2011=5.5 months) then he would only be 20 years and 7 months.

Am I understanding this correctly or am I just being biased and hopeful???

Check out this write-up about CSPA on USCIS website:

http://www.uscis.gov...0004718190aRCRD

Why would they use two different terms:

When the Petitioner is a USC: "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."

&

When the Petitioner is a LPR: "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."

to mean the exact same thing? This phrase seems to be the key difference, but the wording is confusing. It talks about processing times and not priority dates...

Let's think it through with the previous example (I-130 filed at 20 yrs & 6 mos).

In the US Citizen Scenario the Beneficiary's Age is frozen at the Priority Date so no matter how long the wait for PD to be current they don't age-out...

In the LPR Scenario you will subtract the Processing Time from the Beneficiary's current age so if the I-130 processing took 6 months then the Beneficiary will age out at 21 yrs and 6 mos.

In that case, it looks like you are correct, your son's immigration age is is current age minus the I-130 processing time which in your case is around 7 months.

Depending on your country the NVC & consulate process will take minimum 3 -4 months and you've only got until about 7 months past his 21st birthday (already one month down) to get him landed in the US.

The question is when does this adjustment get made?

Edited March 26, 2012 by Bob 4 Anna

[aaron2020 11,651]

Actually I'd say that USCIS didn't need to even consider CSPA. They simply needed to determine if there exists a Petition-able Relationship between the Petitioner and Beneficiary but they do not determine what Visa category the beneficiary would fall under.

If I understand CSPA it only comes into play AFTER the petition is approved. So If your petition was approved 21 days prior to your sons birthday then CSPA could lock his immigration age at 21 days short of 21 (which wouldn't really help him as he'd never get to the point of Visa issuance in 21 days).

Example:

Petition is approved when child is 20 yrs & 6 months old. As Child of LPR they must wait for PD to become current. This wait takes 3 years. Child is now 23 yrs & 6 months but immigration age was frozen at 20 yrs and 6 months so child has 6 months to completed NVC and consulate processing then land in the US.

In short, by my (very limited) understanding of CSPA it doesn't apply to your Son's case as the petition wasn't approved prior to his 21st birthday.

This is not how CSPA works. For family preference cases, approval does not freeze a beneficiary's age. It is much more complex than this.

This is how it works for family preference cases (F1, F2a, F2b, F3, and F4);

LPR parent files on 1/1/2010 for son. Son's birthday is July 1, 1989. He is 20 years and 6 months old. At this point, this is an F2a case. AGE DOES NOT FREEZE at any time here.

On July 1, 2010, Son turns 21 and ages out from the F2a to the F2b category. This is the law and petitioners and beneficiaries are suppose to know this.

USCIS approves the petition on 4/1/2011 and forwards the case to the NVC. It took USCIS about 15 months to approve the I-130. The time it took USCIS to approve the petition is not counted against the beneficiary. AGE DOES NOT FREEZE at any time here.

Scenario 1. CSPA helps. On 8/1/2011, Son's PD becomes current in the F2a category. His real age is 22 years and 2 months. Since it took USCIS 15 months to approve the petition, the beneficiary subtract that time from his real age to determine his CSPA age = (real age) - (time USCIS took to approve the I-130). So, 22 years, 2 months - 15 months = CSPA age of 20 years and 11 months. Son can seek CSPA relief and retain benefit in the F2a category. Son must seek CSPA protection within 1 year of his PD becoming current otherwise CSPA protection is forfeited (Son cannot benefit from CSPA after 8/1/2012). Seeking CSPA protection means filing the DS-230 or hiring a lawyer to start process within 1 year of PD becoming current.

Scenario 2. CSPA does not help. On 10/1/2011, Son's PD becomes current in the F2a category. CSPA age is 21 years and 1 month = (real age of 22 year 4 months) - (15 months it USCIS to approve the I-130). CSPA does not help Son. Son is stuck in F2b category.

Edited March 26, 2012 by aaron2020

[Deputy Purple 1,294]

This is not how CSPA works. For family preference cases, approval does not freeze a beneficiary's age. It is much more complex than this.

Yeah, it took a little more reading for me to get my understanding of it correct (and ironically not from any of the lawyers' blogs and such on CSPA but from reading the USCIS's own stuff).

The difference in Layman's terms is that USC Relative's Immigration Age is FROZEN at their Priority (filing) Date but an LPR Relative's Immigration age is simply adjusted by the length of time taken to process the I-130, correct?

So the case will process as F2B now but if the Beneficiary's PD comes current under F2A and the Beneficiary's "Immigration Age" (which would be their current age minus the USCIS I-130 processing time, right) is less than 21 they can get it processed as F2A?

[aaron2020 11,651]

Yeah, it took a little more reading for me to get my understanding of it correct (and ironically not from any of the lawyers' blogs and such on CSPA but from reading the USCIS's own stuff).

The difference in Layman's terms is that USC Relative's Immigration Age is FROZEN at their Priority (filing) Date but an LPR Relative's Immigration age is simply adjusted by the length of time taken to process the I-130, correct?

No. F1, F3, and F4 have US relative petitioners too.

Immediate Relative cases = beneficiary's age is frozen on the PD (when USCIS receives the I-130). Therefore, the beneficiary's real age on the PD will be his/her CSPA age for immigration purposes.

Family Preference cases = CSPA age is determinable ONLY when the PD becomes current (The US government will not even give an answer on CSPA until after the PD becomes current). The time it takes USCIS to approve the I-130 is not counted against the beneficiary. Essentially, the beneficiary's CSPA age is the real age when the PD becomes current minus the time it took USCIS to approve the I-130.

So the case will process as F2B now but if the Beneficiary's PD comes current under F2A and the Beneficiary's "Immigration Age" (which would be their current age minus the USCIS I-130 processing time, right) is less than 21 they can get it processed as F2A?

Yes, if the beneficiary "sought to acquire" an immigration visa within one year of the PD becoming current.

"Sought to acquire" has been litigated in the courts and USCIS has accepted this for all CSPA cases. It can have a clear meaning such as filing the DS-230 because it is easy to determine when the beneficiary sought to acquire a visa - the day he/she files for a visa. It can have an unclear meaning too - hiring an attorney to file the DS-230 (even if the DS-230 is filed more than 1 year after the PD becomes current) has been sufficient to have "sought to acquire" a visa. In this scenario, it hard to prove when this event occur if the attorney does not keep good records of meetings and phone calls.

If is is determined that the beneficiary did not seek to acquire an immigration visa within one year of the PD becoming current, then CSPA does not apply.

Edited March 26, 2012 by aaron2020

[Deputy Purple 1,294]

No. F1, F3, and F4 have US relative petitioners too.

Immediate Relative cases = beneficiary's age is frozen on the PD (when USCIS receives the I-130). Therefore, the beneficiary's real age on the PD will be his/her CSPA age for immigration purposes.

Family Preference cases = CSPA age is determinable ONLY when the PD becomes current (The US government will not even give an answer on CSPA until after the PD becomes current). The time it takes USCIS to approve the I-130 is not counted against the beneficiary. Essentially, the beneficiary's CSPA age is the real age when the PD becomes current minus the time it took USCIS to approve the I-130.

Thanks, I just love how rarely a week goes by where I don't learn something new from VJ...

[bigdog 376]

We too will be facing this issue, thanks for the education. Good Luck to all.

[Kenken 0]

hmmm.. same here

Hi guys. Im so sorry if i posted my concern here. I just really need help from you guys.. Im a newbie here..

Here's my concern...

Before I turned 21, my mom who is a green card holder filed an I 130 petition for me and Im assumed its F2A when my mom filed it... AND after 1 year and 8 months the USCIS shows POST DECISION ACTIVITY on USCIS.GOV saying...

"On June 20, 2013, we mailed you a notice that we have approved this I130 IMMIGRANT PETITION FOR RELATIVE, FIANCE(E), OR ORPHAN. Please follow any instructions on the notice. If you move before you receive the notice, call customer service at 1-800-375-5283."

Now, Im very confused! and worried! because when my mom filed the Petition for me I was under F2A... and now that the petition is approved and Im already 22 and turning 23 on november , will my category automatically changed to f2b? thats a long, long, long wait!!! and will the CSPA can protect my status to remain as f2a???

I checked the VISA BULLETIN for JULY 2013 and my PD is OCTObER 5, 2011 and if it is still under F2A, my PD will be current next month right???

By the way...

-I received an email from USCIS the same message I saw when I logged in at USCIS.GOV in the case status.

-My mom received the letter after 3 days and contacted USCIS, uscis told my mom that NVC will send letter to her..

-and Just today JUNE 27, 2013 i received an e-mail from USCIS saying...

"The California Service Center (CSC) no longer has jurisdiction over this petition. This case was approved and notification was mailed to the address of record on June 20, 2013. This case will be forwarded to the National Visa Center. Please send any further correspondence to the following address: NVC, 31 Rochester Avenue, Portsmouth, NH 03801-2909. Direct any telephone inquiries to (603) 334-0700.

"I DONT KNOW WHAT TO DO NOW, AND Im very WORRIED AND CONFUSED!!! PLEASE HELP!!!"...

[elaismee 0]

Me too. I am turning 21 next year yet my mother just filed my petition last week.

[Erikainusa 0]

just out of curiosity, what happened to you all? Are you still waiting for the F2B to be current?

The reason I'm asking, because I (US citizen) applied for my mom's GC. She got her GC in January 2016. Her IR5 was approved in August 2015. In October 2015, we submitted the I-130 for my brother (at that time he was 20 yrs and 4 mths old) under F2A. USCIS approved his I-130 on 11/13/2015 (PD of 10/22/2015). Obviously, it will take couple years for F2A to be current at which time he'll be 23 yrs old. So, did you all got "bumped" to F2B?