F4 category, children aged out but eligible by CSPA - no option to pay fees on CEAC

shaken

Registered Users (C)
#1
I need expert advise.

I have files immigrant visa petition for my brother in F4 category with priority date of Dec 2003. My brother recently got notification and now chose "choice of agent" online. My brother's son was about 12 years and now is aged out as he is about 24 years. As per CSPA age calculator, son is eligible to immigrate with my brother as he is unmarried.

When I go to CEAC to pay immigrant visa fees, I see invoice for my brother and sister-in-law (only 2 people) but not kids (nephew / nieces). In other words, there is no option to pay fees for my nephew. My brother wants to come to USA only for my nephew, otherwise there is no point for him to come as he is well-set in India. As per CSPA (https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act/child-status-protection-
act-cspa), my nephew has to file DS-230 (DS-230 paper or now DS-260 online) in order to "seek to acquire" permanent residence.. However, I can not file DS-260 without paying my brother and sister-in-law's fees. And I am worried that once I pay fees for only parents, my nephew may never get a chance.. This is like catch-22 situation. I can't move forward because there is a chance my nephew may get dropped in process. I have to pay fees and move forward otherwise I can't file DS-230.

I called USCIS and asked about same. The officer told me that it is upto consular officer to decide if my nephew is allowed or not.. I tried to explain catch-22 situation but I did not get satisfactory or clear answer.

Has anyone experience similar situation recently? Any thoughts?
 

EURO2014

Well-Known Member
#2
I need expert advise.

I have files immigrant visa petition for my brother in F4 category with priority date of Dec 2003. My brother recently got notification and now chose "choice of agent" online. My brother's son was about 12 years and now is aged out as he is about 24 years. As per CSPA age calculator, son is eligible to immigrate with my brother as he is unmarried.

When I go to CEAC to pay immigrant visa fees, I see invoice for my brother and sister-in-law (only 2 people) but not kids (nephew / nieces). In other words, there is no option to pay fees for my nephew. My brother wants to come to USA only for my nephew, otherwise there is no point for him to come as he is well-set in India. As per CSPA (https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act/child-status-protection-
act-cspa), my nephew has to file DS-230 (DS-230 paper or now DS-260 online) in order to "seek to acquire" permanent residence.. However, I can not file DS-260 without paying my brother and sister-in-law's fees. And I am worried that once I pay fees for only parents, my nephew may never get a chance.. This is like catch-22 situation. I can't move forward because there is a chance my nephew may get dropped in process. I have to pay fees and move forward otherwise I can't file DS-230.

I called USCIS and asked about same. The officer told me that it is upto consular officer to decide if my nephew is allowed or not.. I tried to explain catch-22 situation but I did not get satisfactory or clear answer.

Has anyone experience similar situation recently? Any thoughts?
US citizens can not sponsor their nephews, they can only sponsor their parents, siblings, spouses and children. Green Card holders can only sponsor their children and their spouses. However, as a US citizen, you can sponsor your nephew’s parents and if your nephew’s father or mother is your sibling, you may sponsor him or her for lawful status in America, under the family preference category. After your sibling immigrates to the United States, he or she can file an immigrant petition for your nephew and help him to get a US Green Card. This will take time, of course.
 
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shaken

Registered Users (C)
#3
Thanks Euro2014 for taking time.. However, if you read carefully, it is not a petition for nephew. File is for brother. Nephew is going to accompany brother. As you might be aware, brother's family/kids can immigrate along with brother at the same time as long as kids are not married and eligible as per CSPA calculator.

My question is more procedural than eligibility related !!
 

EURO2014

Well-Known Member
#4
Thanks Euro2014 for taking time.. However, if you read carefully, it is not a petition for nephew. File is for brother. Nephew is going to accompany brother. As you might be aware, brother's family/kids can immigrate along with brother at the same time as long as kids are not married and eligible as per CSPA calculator.

My question is more procedural than eligibility related !!
In cases in which the CSPA child is subject to consular processing, DOS guidance clearly states that a child beneficiary will satisfy the “sought to acquire” one year requirement when Form DS 230, Part I is submitted by the child, or by the child’s parent on the child’s behalf. DOS stresses that in derivative cases, it must be Part I of an application filed specifically on behalf of the derivative child; it is not enough for the principal to seek LPR status within the one-year time frame. Hope this clears up the matter.
 

ImmGuru35

Registered Users (C)
#5
Thanks Euro2014 for taking time.. However, if you read carefully, it is not a petition for nephew. File is for brother. Nephew is going to accompany brother. As you might be aware, brother's family/kids can immigrate along with brother at the same time as long as kids are not married and eligible as per CSPA calculator.

My question is more procedural than eligibility related !!

The CSPA does not apply to the children of Family Fourth preference I-130 petitions. This exact scenario has already been litigated and ruled on by the BIA, 9th Circuit and Supreme Court. Here is the Supreme Court Decision.

http://www.supremecourt.gov/opinions/13pdf/12-930_4g18.pdf
 

EURO2014

Well-Known Member
#6
In a way, this explains DOS guidance to look at CSPA cases on their own merits, by requiring separate DS-230 filing. Thank you for sharing.
 

newacct

Well-Known Member
#7
The CSPA does not apply to the children of Family Fourth preference I-130 petitions. This exact scenario has already been litigated and ruled on by the BIA, 9th Circuit and Supreme Court. Here is the Supreme Court Decision.

http://www.supremecourt.gov/opinions/13pdf/12-930_4g18.pdf
You keep bringing up the irrelevant issue. The INA 203(h)(1) provision of CSPA DOES APPLY to all family preference categories, and it is this provision which makes the OP's child not aged out (that is what the CSPA calculator is calculating). Nobody brought up INA 203(h)(3) here.
 
#8
Hi, I believe I have a similar dilemma. My Aunt filed a petition for my mother back in 2004 it was approved in 2010 but the documents were asked for at the beginning of this year. Of course, the only IV fees that were shown to be paid were that of my mother and Father. Im currently 24 by the way and this petition started when I was 12 approved when I was 18 turning 19. My name currently appears on the IV invoice as follow to join but I cant pay the fees. I was told that a CSPA formula will be done after my parents cased is reviewed. Has anybody had a similar situation and what was the outcome, any advice will help.
 
#9
I had a similar scenario with one F4 derivative niece and one nephew. I did the CSPA age-out calculations and found out that my niece likely missed the CSPA age-21 by a couple of weeks. The nephew's CSPA age was clearly <21. So wrote to NVC (asknvc@state.gov) asking for CSPA determination. They got back to me in about 27 days and sent a payment invoice (with web link) for my nephew (his name showed up on NVC website along with the parents) but no mention was made of my niece. So I wrote again for clarification on her case. Took another couple of weeks but they got back with a response that in her case the determination would be made by the visa office at the consulate--but they enabled something that her name starting appearing with her parents name and her brother's (my nephew) name. We plan to pay the fees in her name and take a chance at the consulate. Will report back if I can remember to in next couple of months. My advice is to keep asking NVC the question until a clear reply is sent. Be persistent. Good luck.
 
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#12
Hi, I believe I have a similar dilemma. My Aunt filed a petition for my mother back in 2004 it was approved in 2010 but the documents were asked for at the beginning of this year. Of course, the only IV fees that were shown to be paid were that of my mother and Father. Im currently 24 by the way and this petition started when I was 12 approved when I was 18 turning 19. My name currently appears on the IV invoice as follow to join but I cant pay the fees. I was told that a CSPA formula will be done after my parents cased is reviewed. Has anybody had a similar situation and what was the outcome, any advice will help.
I
 
#16
Hi,

I would appreciate if you can share your experience or updates after you created this thread.
My case is very similar.
The application was filed in 2004 (I was 17), and approval was received in 2010.
My parents received the DS-260 (in Oct'18) and my name was mentioned, but fee payment wasn't allowed for me.
I paid the fees for my parents and their DS-260 forms were available to be completed, so I filled their forms.
I also emailed USCIS that due to the delay, my age crossed the eligible limit of 21 years and requested them to consider my name in CSPA.
I received the following response: Thank you for contacting us about your applicant's interest in a visa. To continue with processing, you must submit fees and forms to the NVC. We cannot guarantee that the applicant will qualify for the Child Status Protection Act (CSPA) benefits. At the interview, the Consular Officer may find that the applicant is ineligible for a visa. Before you decide if you want to proceed, please go to our website and review the CSPA requirements.
But I then noticed that my DS-260 payment was open so I just made the payment and now waiting to fill the DS-260 form.

Does that mean that I can appear for the interview with my parents and would they consider me for the visa?

Would appreciate having your updates and advice!

Thanks.
 

SusieQQQ

Well-Known Member
#17
@akash.patel4u CSPA is a clearly defined calculation. Do you meet it? You don’t give enough info to be exact but on a quick rough calculation based on what you have providdd it seems to me you aged out. Google “CSPA calculator” and enter your exact dates.
 
#18
@akash.patel4u CSPA is a clearly defined calculation. Do you meet it? You don’t give enough info to be exact but on a quick rough calculation based on what you have providdd it seems to me you aged out. Google “CSPA calculator” and enter your exact dates.
Thank you for your response!
I understand that I crossed the CSPA age limit of 21, but then I am able to fill the DS-260 form.
I emailed USCIS, and then the DS-260 form (for me) was made available online and I made the payment.
I am wondering if this would help to go for an interview with my parents and maybe get the visa?

Thanks.
 

SusieQQQ

Well-Known Member
#20
When was the priority date?

In any case, if your CSPA age is over 21, you *cannot* get a visa based on this petition, regardless of what forms they allow you to fill in or fees they allow you to pay. The extract you quoted earlier specifically directed you to check for CSPA eligibility before deciding to proceed, implying that mere ability to pay a fee does not mean you are eligible for a visa. There is no discretion. Your CSPA age is either below 21, or it isn’t. I mean, you can go along to the interview if you want to confirm it, but understand it’s not a discretionary decision.

Once your parents get green cards they would be able to sponsor your for a visa under the F2B category. Current wait time is around 7 years, and you’d need to remain unmarried. If they become citizens then they can sponsor you if you get married, but then the category changes to F3 with a current wait time of 13-14 years. Sorry to be the bearer of bad news... but it is the situation.
 
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