Child age out

[MarcRosie]

Hey Everyone!

Well sort of good news from the US Government. I've been told that the Child Protection law won't help us in bringing my wife's daughter over here. She's now 20 and will turn 21 1/16/2012. Was told yesterday that's not true. If the I-130 is filed before she turns, she'll be deemed 20 when her visa is issued, which they told me for an F2A, which is what she is now, is a little over 2 years. They will subtract the time it takes to process the visa from her age when they approve it. So basically however long it takes to process her visa request, that amount of time will be subtracted from her age at that point. So when you file is the most important thing. File before they turn 21 and the F2A applies. Cool. And no 8 year wait.

[Randy W]

Unfortunately, the "processing time" does NOT include the wait for an available visa number.

 

Suppose you file now, and the visa takes a total of, say, 6 months to process. The wait for an available visa number is 2 years. In two years, she'll be 22 years and 10 months old. The six months subtracted will place her age, per the CSPA, at 22 years and 4 months. This places her in the F2B category - which is where the 8 year wait comes in.

 

The limitation in this case is due to the numeric quotas, and NOT the time it takes to process her visa application.

[Randy W]

Revised Guidance for the Child Status Protection Act (CSPA)

 

CSPA Age Formula. Determine the age of the alien on the date that a visa number becomes available. The date that a visa becomes available is the later of (a) the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates availability of a visa for that preference category or (b ) the petition approval date if a visa number is already available on the approval date. Subtract the number of days the petition was pending as described in paragraphs (B ), (C ) and (D) below. This is the alien beneficiary’s CSPA age. If the alien beneficiary’s CSPA age is under 21, he or she remains a child for purposes of the application for permanent residence provided the beneficiary properly applies for permanent residence, based on the subject petition, within one year of visa availability and notwithstanding the alien’s CSPA age on the date of adjudication of such application.

Edited November 29, 2011 by dnoblett
Removed the smilie and copywrite symble when b) or (c) is detected by site (see edit history)

[dnoblett]

Randy is correct here, the CSPA only counts I-130 processing time while it is at USCIS, not the time it takes for the petition to get a visa number at the NVC after USCIS approves and forwards to NVC, USCIS tends to push through I-130 petitions in perhaps 4 - 6 months, not the years they used to take, like years ago.

CSPA is for covering a few situations.

• Cases where it would take USCIS a very long time to process an I-130 petition for a family member, where a visa number would be issued very shortly after USCIS process the petition.
• K-3/K-4 AOS cases, where parent married petitioner just prior to child turning 18, but again the I-130 for parent and/or child took longer than normal, resulting in visas issued shortly before child turns 21, and then the parent and child enters USA, and Child ages out while waiting for adjustment of status (I-130+I-485) for child to process. In this case step parent files an I-130 for step child based on marriage prior to child's 18th birthday.
• IR-1/IR-2 cases where marriage took place prior to child age 18, where had lived overseas, then filed petitions for spouse and step child prior to child age 21 via DCF or through USCIS in the states, allowing visa and green card to be issued slightly after child age 21.
• Other derivative cases involving waiting for visa numbers (F-Class) where there would be a derivative relative child involved, the child benefits when USCIS takes long time to process the I-130 petition.

[honeybun]

Was told yesterday that's not true.

Was it the lawyer who got your family into this situation in the first place who gave you this new "information"? Might not be a good idea to keep listening to this person.