Can someone check my CSPA math?

[Natepartlan 11]

CSPA calculation has somehow always confused me.  Could the more knowledgeable people check below and see if my CSPA math checks out for squeaking in under the age of 21?

 

Beneficiary DOB: 15Dec1996
I-130 priority date: 06Dec2017
I-130 approved date: 05Aug2019
F22 visa availability was current on 01Aug2019 visa bulletin
I-130 petition pending time: 1 year, 7 months, 17 days
Age at time of visa availability: 22 years, 7 months, 30 days
CSPA age 20 years, 11 months, 13 days

 

[SusieQQQ 11,584]

Did you submit a ds260 within a year of the petition being approved? You were protected by cspa at the time, but that protection only applies if you “seek to acquire “ a visa within a year of a visa becoming available. For consular processing, submission of ds260 is usually what satisfies the seek to acquire requirement. 

[Boiler 43,597]

So what happened in the last 3 years?

[Natepartlan 11]

1 hour ago, SusieQQQ said:

Did you submit a ds260 within a year of the petition being approved? You were protected by cspa at the time, but that protection only applies if you “seek to acquire “ a visa within a year of a visa becoming available. For consular processing, submission of ds260 is usually what satisfies the seek to acquire requirement. 

 

35 minutes ago, Boiler said:

So what happened in the last 3 years?

 

Aye, so here's the rub.  When notified by email from the NVC in Feb2020 to go begin the DS-260 application process, 2 out of 3 siblings had F22 visa class so we went through and completed all the requirements.  The 3rd sibling was so close to 21st birthday at the time I didn't think too critically when they binned him under F24.  But something kept bugging me about this in my subconscious I guess until I recently checked more deeply.  If my math is right above, I think NVC made a visa class mistake from the beginning.

 

With the F24 visa class and numerical limitations, we were barred from clicking the links to pay fees or begin application.  So we were stuck.  Did we seek to acquire by logging in and trying? In a manner of speaking, yes.

 

I used the NVC's public inquiry link referencing above info and guess we'll wait 6 weeks for an answer.  I see a few ways it could go:

1. They make a visa class correction and due to their mistake, let me complete the DS-260 right away even though past the 1 year to acquire rule

2. They say stick to F24 where he is now and wait until a visa comes up

3. They say yes, you were truly F22 and since you did not seek to acquire within the 1 year limit (by pointing out our own mistake to us), your I-130 is cancelled and go back to the beginning (eek).

[SusieQQQ 11,584]

3 hours ago, Natepartlan said:

 

 

Aye, so here's the rub.  When notified by email from the NVC in Feb2020 to go begin the DS-260 application process, 2 out of 3 siblings had F22 visa class so we went through and completed all the requirements.  The 3rd sibling was so close to 21st birthday at the time I didn't think too critically when they binned him under F24.  But something kept bugging me about this in my subconscious I guess until I recently checked more deeply.  If my math is right above, I think NVC made a visa class mistake from the beginning.

 

With the F24 visa class and numerical limitations, we were barred from clicking the links to pay fees or begin application.  So we were stuck.  Did we seek to acquire by logging in and trying? In a manner of speaking, yes.

 

I used the NVC's public inquiry link referencing above info and guess we'll wait 6 weeks for an answer.  I see a few ways it could go:

1. They make a visa class correction and due to their mistake, let me complete the DS-260 right away even though past the 1 year to acquire rule

2. They say stick to F24 where he is now and wait until a visa comes up

3. They say yes, you were truly F22 and since you did not seek to acquire within the 1 year limit (by pointing out our own mistake to us), your I-130 is cancelled and go back to the beginning (eek).

 

 

“Logging in and trying” is not seeking to acquire. Seeking to acquire is explicitly described by uscis below.  Note the last sentence - that’s probably going to be your best bet to try for - blame the “extraordinary circumstances” on their error.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa
 

Sought to Acquire Requirement

In order to benefit from CSPA as a family preference (including VAWA), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of a visa becoming available to you. This is referred to as the “sought to acquire” requirement.

You may satisfy this requirement by:

• Properly filing a Form I-485, Application to Register Permanent Residence or Adjust Status; or
• Submitting a completed Part 1 of Form DS-260, Immigrant Visa Electronic Application;
• Paying the immigrant visa fee to the Department of State;
• Paying the  Form I-864, Affidavit of Support,  review fee to the Department of State (provided the applicant is listed on the Affidavit of Support); or
• Having a Form I-824, Application for Action on an Approved Application or Petition, properly filed on your behalf.

USCIS also considers a written request to transfer the underlying basis of the adjustment of status application to satisfy the “sought to acquire” requirement if the request is received within one year of an immigrant visa becoming available in the new preference category. If you have a pending adjustment application as a derivative child and USCIS grants the principal applicant’s request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approved petition, then the date that the transfer request is received by USCIS is the date used to determine whether you met the sought to acquire requirement. 

If you fail to satisfy the “sought to acquire” requirement, USCIS may use its discretion to excuse you from this requirement if you can establish that your failure to do so was the result of extraordinary circumstances.

 

 

Edited October 14, 2022 by SusieQQQ

[Natepartlan 11]

17 minutes ago, SusieQQQ said:

 Note the last sentence - that’s probably going to be your best bet to try for - blame the “extraordinary circumstances” on their error.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa
 

So does my age math in the original post seem correct, and does it seem like NVC truly made a visa class mistake?

 

And I've been here enough to know you are a very knowledgeable resource and contributor (thanks!).  With limited ways to contact NVC, any advice how to initiate the correction and pursue to completion?

[SusieQQQ 11,584]

2 hours ago, Natepartlan said:

So does my age math in the original post seem correct, and does it seem like NVC truly made a visa class mistake?

 

And I've been here enough to know you are a very knowledgeable resource and contributor (thanks!).  With limited ways to contact NVC, any advice how to initiate the correction and pursue to completion?

I got a different actual number to you but yes it was under 21. We’ve seen a number of times NVC make mistakes with CSPA - both ways, retaining people who’ve aged out or, more commonly, aging them out when they are protected by CSPA. I’m not sure but I suspect somewhere in the “small print”, the onus is on the beneficiary to confirm everything is correct. Of course, we see them here when people catch them at the time of case creation or request for documents.
 

As far as I know, the NVC inquiry form is the best way to contact them. https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/ask-nvc.html
 

 

Edited October 14, 2022 by SusieQQQ

[LexieJ 44]

@SusieQQQ I am curious about the seek to acquire provision of the CSPA, I was wondering if it got suspended due to the pandemic as most embassies were closed for interviews, specially in the Philippines, the backlog has been pretty bad. So if the seek to acquire is still in effect even with the pandemic, I foresee a lot of CSPA denials moving forward.

[SteveInBostonI130 3,328]

6 hours ago, LexieJ said:

@SusieQQQ I am curious about the seek to acquire provision of the CSPA, I was wondering if it got suspended due to the pandemic as most embassies were closed for interviews, specially in the Philippines, the backlog has been pretty bad. So if the seek to acquire is still in effect even with the pandemic, I foresee a lot of CSPA denials moving forward.

 

Embassies being closed did not affect one's ability to complete the DS-260 and other steps during the NVC stage.  

 

During the pandemic NVC was still working.

 

None of the items listed by USCIS refers to the embassy interview.

[SusieQQQ 11,584]

7 hours ago, LexieJ said:

@SusieQQQ I am curious about the seek to acquire provision of the CSPA, I was wondering if it got suspended due to the pandemic as most embassies were closed for interviews, specially in the Philippines, the backlog has been pretty bad. So if the seek to acquire is still in effect even with the pandemic, I foresee a lot of CSPA denials moving forward.

No, it did not. The DS260 is filed online and filing dates moved with priority dates. As F2A has been current the whole time, there wasn’t a filing barrier so no barrier to fulfilling that requirement.  Aging out as a result of the pandemic backlogs has happened a lot where the priority dates themselves have not been moving, but that’s different from the seek to acquire provision.