F2A Case --Please help

[Castor]

+The child is currently 23 years old and is working in the U.S. under the OPT.
+Both parents acquired permanent residence in August 2008 and applied I-130 Petition for child.
+The I-130 Receipt date: August 22 2010. Case Priority date: August 22 2010. Child's birthday is August 1989 (child was not 21 when the I-130 was applied for).
+Preference classification in the I-130 is: 203 A2A IN A MINOR CHILD OF LPR.
+Got a USCIS approval notice on December 15, 2010 for I-130.

+In December 2012, F2A Priority Date in VB was August 22 2010, so we submitted all the paperwork to USCIS in early December 2012. Two weeks later we received a rejection letter stating that the priority date was not current and that the case could not be processed.

The letter does not state the reason for the rejection. Could you please help us understand what the reasons for this rejection could be? Are there any options we may have to keep the child here in the U.S.? The entire family (parents and other siblings) are in the U.S. legally (PR and Citizens)

 

[Jackolantern]

Their child aged out of F2A and is now converted to F2B. F2A is for under-21 children.

The CSPA adjustment would allow staying in F2A for some time after turning 21, however based on the facts you have given the adjustment here is only 115 days (Aug 22 to Dec 15). So the age out happened at 21 years and 115 days old.

Why didn't the child immigrate in 2008 with the parents as a derivative? Or is the derivative case still pending? And why didn't the parents file the I-130 back in 2008?

 

[Castor]

Thank you for your response. We were told that the parents could not petition the child because the child was under an F-1 visa. Do you believe we were told the wrong information?
Thanks again

 

[Jackolantern]

Thank you for your response. We were told that the parents could not petition the child because the child was under an F-1 visa. Do you believe we were told the wrong information?
Thanks again

That's blatanty wrong information.

The petition could cause refusal of entry when trying to use the F1 visa to reenter the US, but the F1 visa would not prevent them from filing the petition or cause it to be denied.

Unfortunately they didn't file the petition soon enough, so upon expiration of the OPT, their child will have to leave the US unless eligible to switch to another visa like H1B, or maybe extend the F1 by going for another degree.

Meanwhile, their child must not get married before the petitioner becomes a US citizen, as that would nullify the case. Marriage after naturalization of the petitioner is OK, but that would change the category to F3, which has a longer wait. However a benefit of F3 is that the spouse and child(ren) would be able to join as derivatives.

 

[Castor]

Thank you for your quick response. One more question with the information you provided.
The child wishes to study more wile waiting for the priority dates to become available.
To continue studying here in the US, the child would need to apply for a new F1 visa abroad. Would applying for a new F1 abroad void/cancel the Family Based Application?

 

[Jackolantern]

To continue studying here in the US, the child would need to apply for a new F1 visa abroad.

That won't be necessary if the studies for the new degree will begin before the existing F1 status ends. Once accepted to the new program, it is possible to get an extension of status within the US. However, upon leaving the US it will be necessary to apply for a new F1 visa to return.

With the I-130 having been filed in 2010 and F2B currently at 2005, there's an expected wait of about 5 more years to become eligible for adjustment of status. So extending the F1 status for another degree may not be enough to remain in the US for all that time.

Would applying for a new F1 abroad void/cancel the Family Based Application?

Having the ongoing immigrant petition with both parents living permanently in the US may result in denial of the F1 visa, but applying for or obtaining an F1 visa won't affect the immigrant petition.

 

[Castor]

Thank you. The child F1 visa expired on December 2012.
Wouldn't the child have to leave to apply for a new F1 visa back to the home country?
Our concern is them cancelling the family based application.
Would not they think the child has intention to stay while the FB case is pending.
You have no idea how much I appreciate your feedback. Thanks again.

 

[Jackolantern]

Thank you. The child F1 visa expired on December 2012.

Visa expiration is not the same as status expiration. Visa expiration is only the last day to enter the US, it's not the last day to remain in the US. Status can be maintained long after the visa has expired.

Wouldn't the child have to leave to apply for a new F1 visa back to the home country?

F1 status may be extended while remaining in the US, if there is no gap in status (i.e. in this case, the new studies must begin before the end of OPT+ the 60-day grace period). A new visa is not required to remain in the US, it's only required to reenter the US after traveling abroad.

Our concern is them cancelling the family based application.
Would not they think the child has intention to stay while the FB case is pending.

Yes, the F1 extension or new visa application may be denied because having parents in the US and an immigrant petition are indicators of wanting to stay and immigrate. But the F1 extension or new visa won't affect the immigrant petition. The immigrant petition can hurt the prospects for F1 status, but not vice versa.