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CSPA - will my brother age out ?

Miami, FL |

I know it would be only speculation but I would like to know your opinion about my little brother's application. Do you THINK its likely he will be eligible for CSPA?

I-130 priority date is 12/24/2012 *f2a*
DOB - 09/24/1993
California Service Center

Visa Bulletin is currently processing applications with priority date 10/2010.

is it better that USCIS takes about one year to approve his petition? It looks like he would be eligible for CSPA if yes. What do you guys think?

thanks

Attorney Answers 3

Posted

It depends on the status of the petitioner and whether he is a derivitive or primary beneficiary.

Immediate-relative children who were unmarried and under 21 at the time their U.S. citizen parent filed a Form I-130, Petition for Alien Relative, on their behalf are allowed to preserve their immediate relative status upon turning 21. Thus, they will never age out and are still eligible for the immigration benefit for which they applied. Under the prior law, they would have automatically moved into the first-preference category upon turning 21.

Children who were married and under 21 at the time their U.S. citizen parent filed an I-130 on their behalf and who subsequently divorced before turning 21 convert to the immediate-relative category. The CSPA preserves their immediate-relative status when they turn 21.

Children who were unmarried and under 21 at the time their legal permanent resident (LPRs) parent filed an I-130 on their behalf, and whose parent subsequently naturalized before the child turned 21, convert to the immediate-relative category. The CSPA preserves their immediate relative status when they turn 21.

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Asker

Posted

Hey Thanks for your answer . His mother is a LPR and likely will not become a USC . Do you think he would be eligible for CSPA? Thanks

Posted

From the USCIS Q&A:

"A “child” is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA)."

Click on the link below for more information.

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3 comments

Asker

Posted

Hey I know what CSPA is. I am trying to find out if my brother ( child of LPR) would be eligible for it! Thanks

Matthew L. Kolken

Matthew L. Kolken

Posted

Here are the eligibility criteria: Eligibility Criteria Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002. The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002. The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later. Note: Individuals may be eligible to apply for permanent residence under CSPA after 1 year of a visa becoming available if all of the following are true: They are a beneficiary of a visa petition that was approved prior to August 6, 2002 They had not received a final decision on an application for permanent residence based or immigrant visa on that visa petition prior to August 6, 2002 The visa became available on or after August 7, 2001 They met all of the other eligibility requirements for CSPA (see above)

Asker

Posted

never mind . Thanks for your time though .

Posted

I agree with Ms. Mulder. I wrote an article on this subject that may be helpful to you.

www.gassonlaw.com - Disclaimer: This a general answer to your legal question. Unless you have a signed engagement letter with me, you should not consider this information to be legal advice.

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