CSPA (Aging out) for LPRs

[eas9898]

Hello everyone,

I was wondering if anyone had any experience with the calculations done for aging out for children of LPRs.

According to the information found, it states:

Under the legislation, the age of the alien child on the date on which an immigrant visa number becomes available, reduced by the number of days the petition was pending, will be determinative, but only if the individual seeks to acquire permanent resident status within one year of such availability.

This is a bit confusing to me, as I don't understand how it is different from just calculating the age based on the priority date..

The case in question had a PD of Jun 21, 2006. She was at that time 5 months short of 21 years old, and was therefore in the 2A category. Her DOB is Nov 7, 1985. In November 2009, a letter was sent from immigration saying the petition was approved (with a date of Oct 26, 2009). However, now that the visa has become available, they are saying that she is to be reclassified as 2B, thus adding several years to her wait time.

Naturally, she is devastated, but I am trying to understand how the calculations here work, specifically the part about "number of days the petition was pending". Is this not going to be the visa availability date - the priority date?

Thank you very much for any information. It is great that a community like this exists to help others.

 

[Jackolantern]

Naturally, she is devastated, but I am trying to understand how the calculations here work, specifically the part about "number of days the petition was pending". Is this not going to be the visa availability date - the priority date?

No, it would be the I-130 approval date minus the priority date. Her overall green card process is still pending, but the petition (which is the I-130) is not pending anymore once the I-130 is approved.

In this case, the petition was pending for 3 years, 4 months, and 5 days* (Oct 26, 2009 - June 21, 2006). Subtracting that from her actual age (approx. 24 years and 6 months) still makes her a couple months over 21 when her F2A priority date became current on the first of this month.

The CSPA is designed to protect children from the effects of slow I-130 or I-140 processing; not to protect them from the long wait for a visa number to become available.


*technically it should be calculated in days rather than years months and days, but that only matters when the ages and numbers involved are close enough to require an exact calculation to the precise day. In this case she is months off, so years/months/days is used for simplicity.

 

[eas9898]

Thank you for the detailed reply, Jackolantern. It seems that the 'protection' act doesn't offer much protection, as visa availability is what takes the longest time.

The ironic part is that if they had been just a bit slower with their approval process, she would not have aged out.

Question, if you or anyone knows...

The mother will be naturalized sometime this year, which I know will allow her to move to the 1A category. I wonder if, since the CSPA protects children differently for citizens (their age gets locked in as of their priority date, no calculations necessary), she would then be able to move back to her original 2A status at that time.

Is anyone familiar with this type of situation?

Thank you again.

 

[Jackolantern]

The mother will be naturalized sometime this year, which I know will allow her to move to the 1A category. I wonder if, since the CSPA protects children differently for citizens (their age gets locked in as of their priority date, no calculations necessary)

The bolded part is not applicable to this situation. It only applies if the child was still under 21 and unmarried when the visa number became available.