F3 Visa Derivative Child: Updated CSPA, AOS, & F1 Status Queries

[Milin2001 0]

Situation Summary:

I'm currently facing a unique immigration situation in the USA. My mother is the principal applicant for the F3 immigration visa, and I am her derivative child/applicant. She's expected to arrive in the USA soon, and once here, she'll receive her green card. As for me, I'm in the USA on an F1-student visa, and both of us have completed the necessary payments for consular processing and DS260.

Due to COVID-related delays, I've now turned over 21, which typically complicates my eligibility for consular processing. However, there's been an update to the USCIS CSPA policy on February 14, 2023. This updated policy determines age eligibility based on the visa bulletin's date of filing chart specifically for Adjustment of Status (AOS) applicants.

Questions I Have:

1. Considering the updated CSPA policy, should I proceed to apply for Adjustment of Status (AOS) I-485 when my mother receives her green card in the USA? My intention is to maintain my F1 status until there's a final decision on my I-485 application.

2. In case my I-485 application is denied, would that affect my F1 student status? My goal is to continue with my F1 visa and pursue my studies in the USA, if my I-485 gets denied.

Reasons I Believe I'm Eligible:

1. The DS260 fees have been paid, satisfying the "sought to acquire" requirement.

2. When my Priority Date was listed as current in the visa bulletin in July 2021, I was 20 years & 2 months old. Hence, based on the updated CSPA policy, I'm under the impression that my age is locked for AOS.

3. I've consistently maintained a lawful presence in the USA, supported by a valid i20 and my current full-time academic enrollment.

Additional Details:

Pertaining to my mother's I-130 application for the F3 visa:

- Priority Date: August 13, 2009

- Approval Date: May 12, 2010

- My DOB: May 5, 2001

- Documentarily Qualified Date by NVC: November 26, 2021.

 

link to updated Feb 14, 2023 CSPA policy: https://www.uscis.gov/green-card/gre...ction-act-cspa
link to July 2021 Visa bulletin: https://travel.state.gov/content/tra...july-2021.html

 

Can you please assist with my concerns and I hope I provided as much detail as possible.

[Boiler 45,655]

Your Mother has been issued an immigrant visa?

[Milin2001 0]

No waiting for her interview.

[manyfudge 291]

@Milin2001, a few things wrong with your assumptions.

 

You cannot use table B - dates for filing - you are not the principal beneficiary.

 

She is not in the U.S.

Even if you could, this was a new policy that started the beginning of this year and I don’t think would go back retroactively.

 

The few cases I read about that were able to take advantage “retroactively” were aged out dependents of H1B visa holders.  The principal beneficiaries  lived in the US.

Edited September 21, 2023 by manyfudge

[Boiler 45,655]

3 hours ago, Milin2001 said:

No waiting for her interview.

She has to wait for her PD to be current, I am not sure when that will be.

[Milin2001 0]

4 hours ago, manyfudge said:

@Milin2001, a few things wrong with your assumptions.

 

You cannot use table B - dates for filing - you are not the principal beneficiary.

 

She is not in the U.S.

Even if you could, this was a new policy that started the beginning of this year and I don’t think would go back retroactively.

 

The few cases I read about that were able to take advantage “retroactively” were aged out dependents of H1B visa holders.  The principal beneficiaries  lived in the US.

They made some updates and I read on some article they are going retroactively. And I am not thinking of applying for i485 right now, I will wait until she arrives in the USA and get her green card. 

 

Tell me one thing if I have legal student status and my i485 gets denied will it affect my student status?

[manyfudge 291]

17 minutes ago, Milin2001 said:

going retroactively.

Sure, but you are not the beneficiary.

 

She has to go by the later date. She arrives, CSPA is as of her priority date being current.

 

If your i485 is denied, you may have trouble renewing your student visa. 

Edited September 21, 2023 by manyfudge

[Boiler 45,655]

55 minutes ago, Milin2001 said:

They made some updates and I read on some article they are going retroactively. And I am not thinking of applying for i485 right now, I will wait until she arrives in the USA and get her green card. 

 

Tell me one thing if I have legal student status and my i485 gets denied will it affect my student status?

As long as you do not use EAD and AP you will retain your F1 status 

[manyfudge 291]

Anyway, hire a lawyer.

 

Schusterman or Murthy - they were very involved in the Cspa aging out cases.

[Demise 1,295]

I would definitely recommend getting a decent lawyer, however:

1. Go for it. I agree with you that you appear to be eligible:
   1. The disclaimer on this page does point to the policy being retroactive. Where they will process all currently pending and future applications under it and allow previously denied now eligible ones to file for a reconsideration.
   2. USCIS's visa bulletin for June 2021 shows that F3s were eligible to file based on dates for filing and with this new policy that is the day when the visa became eligible
   3. You paid the fee for DS-260 within 1 year and thus satisfied the "sought to acquire" requirement. There is no requirement to proceed via the same process that you satisfied the requirement via.
   4. The visa availability date has not retrogressed since June 2021.
2. As long as you maintain the F-1 you wont lose it should I-485 be denied. I would be weary of any international travel since by filing that you are showing immigrant intent and CBP isn't supposed to let non-immigrants who have immigrant intent into the country. Similarly you should not use an EAD obtained as part of your adjustment application to work since by doing that you technically violate your F-1 status.

 

Also I'm not sure what manyfudge is on about. CSPA does cover derivative beneficiaries (chidren of: VAWA spouses, widow(er)s, F1, F2A, F2B, F3, F4, EB1-5, DV, asylees, refugees), similarly I can't find anything that would mandate that a derivative has to use the final action dates table. Yes you can't file I-485 until your mother is in US, but that's about it, you've locked your age in by paying the fee for DS-260, you should be good to file once she's in US.

Edited September 22, 2023 by Demise

[Milin2001 0]

2 hours ago, Demise said:

I would definitely recommend getting a decent lawyer, however:

1. Go for it. I agree with you that you appear to be eligible:
   1. The disclaimer on this page does point to the policy being retroactive. Where they will process all currently pending and future applications under it and allow previously denied now eligible ones to file for a reconsideration.
   2. USCIS's visa bulletin for June 2021 shows that F3s were eligible to file based on dates for filing and with this new policy that is the day when the visa became eligible
   3. You paid the fee for DS-260 within 1 year and thus satisfied the "sought to acquire" requirement. There is no requirement to proceed via the same process that you satisfied the requirement via.
   4. The visa availability date has not retrogressed since June 2021.
2. As long as you maintain the F-1 you wont lose it should I-485 be denied. I would be weary of any international travel since by filing that you are showing immigrant intent and CBP isn't supposed to let non-immigrants who have immigrant intent into the country. Similarly you should not use an EAD obtained as part of your adjustment application to work since by doing that you technically violate your F-1 status.

 

Also I'm not sure what manyfudge is on about. CSPA does cover derivative beneficiaries (chidren of: VAWA spouses, widow(er)s, F1, F2A, F2B, F3, F4, EB1-5, DV, asylees, refugees), similarly I can't find anything that would mandate that a derivative has to use the final action dates table. Yes you can't file I-485 until your mother is in US, but that's about it, you've locked your age in by paying the fee for DS-260, you should be good to file once she's in US.

Yeah, that’s what all I am thinking.

quick question can I still use OPT EAD?and for the traveling part since my parents will be here I can mostly likely avoid traveling. 
thank you 

[Milin2001 0]

10 hours ago, manyfudge said:

Anyway, hire a lawyer.

 

Schusterman or Murthy - they were very involved in the Cspa aging out cases.

Do you know how to reach them out like any phone number or website? Please let me know 

[Demise 1,295]

2 hours ago, Milin2001 said:

Yeah, that’s what all I am thinking.

quick question can I still use OPT EAD?and for the traveling part since my parents will be here I can mostly likely avoid traveling. 
thank you 

OPT EAD is fine since that's a part of your F-1 status.

 

Like do file I-765 and I-131 for a C09 EAD and Advance Parole. It's better to have them and not need them than need them and not have them, so if you need to secure employment outside of OPT or travel abroad you'll have them.

[manyfudge 291]

6 hours ago, Demise said:

what manyfudge is

It does cover derivatives WHEN the principal is also in the country.

 

The issue is that the OP has aged out for consular processing.  Once they age out, can they get another bite of the apple by using the dates for filing?  I'm not so sure about that.

 

They can't be processed at the same time as the main beneficiary.

OP needs a great lawyer, and maybe hire one who was involved in the original dates for filing litigation.

[manyfudge 291]

6 hours ago, Demise said:

you've locked your ag

OP has not locked in his/her age with paying of the fee because the priority date is not current for the principal beneficiary.

If OP had locked in his/her age, there would be NO issue with them tagging along to the consular interview.