Many aliens are concerned about their children’s “aging out” during their employment-based immigration process. In some cases, as a derivative beneficiary of his/her alien parent’s immigration petition, the alien child is protected by the CPSA from aging out. Basically the same rules introduced in the section above on children of Permanent Residents apply here.
Determination of the Age of the Alien Child
In accordance with the CSPA, the age of the alien child is determined on the date on which an immigrant visa number becomes available for his/her parent’s immigration petition, subtracted by the number of days the petitions were pending with the USCIS. [CSPA 3 (h)(1)(A)(B)]
The formula for calculating the age of the alien child involves two dates:
- the age of the alien child on the date on which an immigration visa becomes available for his/her parent’s immigration petitions; and
- the number of days the immigration petition is pending
The age of the alien child = (1) – (2)
Under Section 3 of the CSPA, the alien seeking CSPA benefits is required take the necessary steps to seek LPR status within the one-year time frame. In cases involving derivatives, it is not enough that the principal may have taken the required steps within the one-year time frame—the derivative him/herself must have taken those steps (or the principal must have taken the required step specifically for the derivative, acting as the derivative’s agent).
Therefore, if the applicant seeking CSPA benefits is a derivative, then the determining factor is the filing of I-485 within one year of the immigrant visa number becomes available or the submission of a completed DS-230, Part I, which covers the derivative in the consular processing. The submission of a DS-230 Part I that covers the principal will not serve to meet the requirement. [CSPA 3]
In another word, in order to take advantage of the CSPA, the child beneficiary has to apply for adjustment of status or initiate a Consular Processing within one year of the visa number becoming available.
Samuel files an I-140 petition under the EB-2 “National Interest Waiver” category when his son, Scott, is 20 years, 11 months old. The case is approved after 6 months; and at that time, Scott is 21 years and 5 months. The immigrant visa numbers for EB-2 NIW applicants became available immediately at the approval time of Samuel’s immigration petition. Scott’s age is reduced by 6 months, which equals 20 years 11 months. As a derivative beneficiary of Samuel’s I-140 immigration petition, Scott’s age is locked at 20 years 11 months. Scott can file his I-485 to apply for adjustment of status with his father, Samuel. Scott has to file his I-485 within one year of his father’s NIW approval.
Travis files an I-140 petition under the EB-1(A) “Alien of Extraordinary Ability” category when his daughter Evelyn is 20 years, 7 months old. The case is approved after 6 months, at which time Evelyn is 21 years and 1 month old. The immigrant visa numbers is available at the time Travis’ immigration petition is approved. Evelyn’s age is reduced by 6 months, which is 20 years 7 months. As a derivative beneficiary of Travis’ immigration petition, Evelyn’s age is locked at 20 years 7 months. Evelyn needs to file an I-485 or initiate a Consular Processing within one year from the EB-1(a) approval and her age is protected under the CSPA and she will not be “aged out” no matter how long her I-485 is pending to be processed by the USCIS.
Retention of Priority Date
If the age of an alien is determined under the above calculation to be 21 years or older, the alien’s petition shall automatically be converted to the appropriate family-based immigration preference category (most likely, Family-based Immigration under FB-2(b)) and the alien shall retain the original priority date issued upon receipt of the original petition. [CSPA 3 (h)(3)]
The Labor Certification application that was submitted on Jim’s behalf on January 1, 2010 was later approved on December 1, 2010. Afterwards, his employer submits an I-140 (EB-2) immigration petition on Jim’s behalf on January 1, 2012. At that time, Jim’s son, Junior, is 20 years and 7 months old. Jim’s I-140 petition was pending for six months and was approved on July 1, 2012, when Junior is 21 years 7 months. The visa number for the EB-2 becomes available for Jim on July 1, 2013. Under the CSPA, Junior’s age is fixed as of the date that the I-140 was filed. Because Jim’s I-140 was pending for six months, these six months are subtracted from Junior’s age at the time when the I-140 was approved. Subtracting six months from Junior’s age of 21 years, 7 months on July 1, 2002, Junior’s age was fixed at 20 years and 7 months. However, because the immigrant visa number is not available on July 12, 2012, Junior’s age starts toll. Even with the Child Status Protection Act, Junior still ages out and may not adjust his status as he is “21 years and 7 months” older under the CSPA on July, 2013 when the immigrant visa number becomes available for his father.
Visa Availability Date Retrogression
If a visa availability date retrogresses, and an alien has already filed a Form I-485 based on an approved Form I-140, the Service should retain the Form I-485 and note the visa availability date at the time the Form I-485 was filed. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” using the visa availability date marked on the Form I-485. If, however, an alien has not filed a Form I-485 prior to the visa availability date regressing, and then files a Form I-485 when the visa availability date again becomes current, the alien’s “age” should be determined using the subsequent visa availability date. [CSPA Memorandum 2]
Dr. Lam was approved for a National Interest Waiver (NIW) on December 13, 2011; her case was originally filed on March 14, 2011, one month before her daughter’s birthday (April 15, 1990), which means the case was pending for 9 months. Based on the CSPA calculation, since at the time the NIW was approved an immigrant visa number was available, Dr. Lam’s daughter was under 21 for purposes of the CSPA and had one year from the date of the approval to seek legal permanent resident status. Dr. Lam and her daughter applied for the I-485 on June 25, 2012. At the time the daughter’s I-485 application was submitted there were immigrant visas available, but before the adjustment of status application was approved, the visa availability date retrogressed from July 1, 2012 and an immigrant visa was no longer available to Dr. Lam’s daughter for a while. However the USCIS will keep the I-485 application pending until the visa number becomes available again. And as long as Dr. Lam’s daughter was considered a “child” when her adjustment of status was filed under the CSPA, the USCIS will process the case.
Furthermore, if Dr. Lam’s daughter had not filed a Form I-485 prior to July 1, 2012, she could file the I-485 petition when the visa availability date becomes current again as long as she is still considered a “child” under the CSPA by that time. In this particular case, she will be likely “aged out” as the visa retrogression will be likely long.
Taking step within one year of the immigrant visa number becomes available in the Consular Processing Context:
When derivative applicants seeking to follow or join a principal who was already issued an immigrant visa, they are required to send a DS-230 Part I within one year of visa availability. In cases where no record of the case exists at post, it would be the applicant’s burden to establish that this requirement was satisfied. The principal alien’s file at USCIS may contain some documentation relevant to this issue (e.g., an OF-169 signed by the principal applicant but expressly listing the derivative’s name as one of the family members intending to immigrate). It would be the alien’s burden to present such evidence.
If it has been established that a DS-230 Part I was specifically submitted to the NVC for an alien seeking CSPA benefits, posts must then verify that the Form was submitted within one year of visa availability. To determine the date on which the alien submitted Part I of the DS-230, post may normally refer to the “OF-230 P1 Received” date recorded in the IV system. If a DS-230 Part I was submitted for the alien seeking LPR benefits and the submission date in the IV system is less than a year after visa availability, then the alien normally will have satisfied the requirements of Section 3 and may benefit from the CSPA, absent evidence that the response date related only to the principal and that the DS-230 Part I for the derivative was submitted at some later time subsequent to the principal’s response to Packet III. On the other hand, if the DS-230 Part I response date is more than a year after visa availability, then the alien normally would not be eligible for Section 3 CSPA benefits, unless the alien can show that he/she actually made the submission at an earlier date that was within one year of visa availability.
Since Packet III the Instruction Package for Immigrant Visa Applicants is sent out when the priority date falls within the qualifying date, there will be cases when the applicant actually submits the DS-230, Part I before the priority date is current, i.e., before a visa has even become available. Any case in which the applicant’s DS-230, Part I is received before the priority date is current would necessarily meet the requirement that the alien seek LPR status within one year of a visa number becoming available.
Dr. Lam was approved for a National Interest Waiver (NIW) on December 13, 2011; her case was originally filed on March 14, 2011, one month before her daughter’s birthday (April 15, 1990), which means the case was pending for 9 months. Based on the CSPA calculation, since at the time the NIW was approved an immigrant visa number was available, Dr. Lam’s daughter was under 21 for purposes of the CSPA and had one year from the date of the approval to seek legal permanent resident status. Therefore, Dr. Lam’s daughter began the processes of Consular Processing at the U.S. Consular Office abroad by filing a DS-230, Part 1. Furthermore, Dr. Lam’s daughter’s age would be locked-in as long as she files the DS-230 within the 1 year period after the approval of her mother’s NIW.