F4 to F2B .. Anyone here?

[jahkissez]

So I've browsed the site and others searching for a condensed source of info on this. Not much help.

- Is there anyone here who was in a derivative category and then had it transferred to F2b category?
- Is there anyone here in a derivative category, and because of age-out, will transfer to F2B category?

Also, if the original petitioner previously moved to another state, can someone else co-sponsor the family, even if they're living in another state?
What of the medical instructions? If accompanying a parent to the interview, when is the overaged child medical interview done?

 

[LucyMO]

Also, if the original petitioner previously moved to another state, can someone else co-sponsor the family, even if they're living in another state?

it doesn't matter where the petitioner lives. He is still the sponsor.

when is the overaged child medical interview done?

did the child age out? is he still eligible for a visa in his derivative category?

Is there anyone here who was in a derivative category and then had it transferred to F2b category?

how do you think that's going to happen? get adopted by your sibling? you may be able to keep your PD, but I don't think you can actually transfer the original petition from a derivative category to F2b.

 

[jahkissez]

it doesn't matter where the petitioner lives. He is still the sponsor.

So its not problem for someone else, say a family member who lives in another state, to co-sponsor?

did the child age out? is he still eligible for a visa in his derivative category? how do you think that's going to happen? get adopted by your sibling? you may be able to keep your PD, but I don't think you can actually transfer the original petition from a derivative category to F2b.

I'm the child, yes, as far as I know I have, the petition was only pending for 3 months, and I am now 25. If my father is approved his GC, then I should be able to move from derivative F4 to F2B - unmarried daughter of a LPR.
What I meant by 'transfer' is my status being moved from being a derivative child of a sibling sponsored by their US citizen relative, to an unmarried child of a LPR.

Thanks for answering..

 

[LucyMO]

What I meant by 'transfer' is my status being moved from being a derivative child of a sibling sponsored by their US citizen relative, to an unmarried child of a LPR.

no, it doesn't work that way. You will have a completely different petitioner and a new petition.

 

[TheRealCanadian]

no, it doesn't work that way. You will have a completely different petitioner and a new petition.

Why not? CSPA implies that an aging-out derivative can still claim the original priority date in FB2A, with a new sponsor.

 

[xerostomic]

Why not? CSPA implies that an aging-out derivative can still claim the original priority date in FB2A, with a new sponsor.

Apart from few court decisions do you have evidence where USCIS gave old PD without any problem. If it was possible then this forum would have been flooded with sucessful case, but unfortunately I don't even see a single case here. I haven't seen any one on any forum saying that he got the old PD. You will see the same few cases every where that were decided by court and every one tries to quote them in favour of his case, but USCIS doesn't even look at them. I did some research and came to know that although it is a law, but USCIS isn't implying this section of CSPA and USCIS hasn't issued any formal policy on this section of the law till date.
Shusterman is filling a law suit in fedral court to compel USCIS on this issue. Don't know how long it will take, probably two year. There are hundreds and thousands of ppl waiting in FB1 and FB2b, which is an indication that ppl are not given old PD's and if USCIS give old PD then they would have to give it to every one otherwise Cutoff dates will move back to 80's and persons with PD's in 2000 will never immigrate.
Whatever decision court gives in shusterman's suit, they will have to take care of every one. They will have to take all the applications out of their storage, go to the roots of each petition and repriotirize all applications filed after enactement of child status protection act.

 

[LucyMO]

Why not? CSPA implies that an aging-out derivative can still claim the original priority date in FB2A, with a new sponsor.

I didn't say he couldn't use the old PD date. I said he would have to have a new petitioner and a new petition. Do you disagree with that? or do you think his F-4 derivative application will magically transform itself into F2B application?

 

[TheRealCanadian]

I said he would have to have a new petitioner and a new petition. Do you disagree with that? or do you think his F-4 derivative application will magically transform itself into F2B application?

From what CPSA seems to imply, there will be some magic transformation into an FB2 petition from the original primary beneficiary. It's the "Automatic Conversion" clause.

 

[xerostomic]

I didn't say he couldn't use the old PD date. I said he would have to have a new petitioner and a new petition. Do you disagree with that? or do you think his F-4 derivative application will magically transform itself into F2B application?

CSPA no where says that he need to file a new I-130. The word magical trasformation is the pretty much right if you read CSPA. Even with new I-130 very few ppl have been succesful in getting old PD's and you will see the same cases quoted by every one in favour of CSPA. If you check the news ticker on shusterman's web site it also says the same thing and that's the reason they are going to fedral court, right now they are asking for one more plainttif living in LA, any one interested can join them.

 

[LucyMO]

but what you are saying is that RIGHT NOW the magical thing doesn't really work, right?

otherwise people wouldn't be worrying too much about aging out while being the derivatives on F4. Why would they worry? when your parents are getting a GC through the sibling, but you have aged out, you are getting an immigrant visa pretty much right away - after all, you automatically become F2B, and the wait for those is only 9 years, and you have been waiting for 12 already. Your PD is current right away, right?

 

[xerostomic]

but what you are saying is that RIGHT NOW the magical thing doesn't really work, right?

otherwise people wouldn't be worrying too much about aging out while being the derivatives on F4. Why would they worry? when your parents are getting a GC through the sibling, but you have aged out, you are getting an immigrant visa pretty much right away - after all, you automatically become F2B, and the wait for those is only 9 years, and you have been waiting for 12 already. Your PD is current right away, right?

LucyMo you are right. If USCIS issue some policy on this section of CSPA then things would change enirely. Suppose FB2b cutoff date for July VB was in 1999, but if they repriotirize all the applications that have been pending or approved since enactment of CSPA in 2002 the cuttof dates will move back to mid 80's because every one will have old PD, so visa number still may not be available to every one becuase green card quota is the same. If this section of CSPA is enacted it will not reduce the current backlog, all it would do is to change the order in the que that currently exists
This is becuase applicants are the same, green card quota is the same, only position in the green card que will be changed, so there is no gurentee that a visa number would be available to every one unless you know how close you stand in new que.

 

[jahkissez]

but what you are saying is that RIGHT NOW the magical thing doesn't really work, right?

otherwise people wouldn't be worrying too much about aging out while being the derivatives on F4. Why would they worry? when your parents are getting a GC through the sibling, but you have aged out, you are getting an immigrant visa pretty much right away - after all, you automatically become F2B, and the wait for those is only 9 years, and you have been waiting for 12 already. Your PD is current right away, right?

I'm a female. Isn't anyone reading that part right, LOL!
But LucyMO, this is where I'm coming from: this is precisely my understanding of the CSPA. If your case is current, and you've already waited the 10 years, why put it another 10 years for all you know?

As for xerostomic, I get what you're saying too, the coin flips both ways; if CSPA allows everyone who missed out on F4 because they aged out to move to F2B then there will be a huge backlog, and even if they stood to rewrite the Act, there'd be a lot of loopholes to cut out.

I've spoken to a lawyer, and outside of telling me to go to immigration court if I'm successful in my father's interview, it relies on the discretion of the immigration officer.
Best I can do is have all my required documents ready, and if that be the case, try and present a strong case in hoping theings sway in m favour.
That being said - all I can do is wait.
Thats the hard part.

 

[xerostomic]

I'm a female. Isn't anyone reading that part right, LOL!
But LucyMO, this is where I'm coming from: this is precisely my understanding of the CSPA. If your case is current, and you've already waited the 10 years, why put it another 10 years for all you know?

As for xerostomic, I get what you're saying too, the coin flips both ways; if CSPA allows everyone who missed out on F4 because they aged out to move to F2B then there will be a huge backlog, and even if they stood to rewrite the Act, there'd be a lot of loopholes to cut out.

I've spoken to a lawyer, and outside of telling me to go to immigration court if I'm successful in my father's interview, it relies on the discretion of the immigration officer.
Best I can do is have all my required documents ready, and if that be the case, try and present a strong case in hoping theings sway in m favour.
That being said - all I can do is wait.
Thats the hard part.

If it is a law then it should be applied to every one and if it is at the discretion of adjudicating officer then it's not a law becuase the law doesn't leave this issue to some kind of discretion.
I wish you best of luck. let us know if you suceed. by the way are you trying retain automatically or by filing new I-130.

 

[TheRealCanadian]

If it is a law then it should be applied to every one and if it is at the discretion of adjudicating officer then it's not a law becuase the law doesn't leave this issue to some kind of discretion.

Unfortunately, with a number of new laws the first few to blaze the trail will have a difficult road. If it is denied by USCIS then it certainly makes sense to appeal to BIA and then federal court. I am puzzled why Shusterman is suing - if he's lost some cases it is probably simpler to appeal to BIA; that is what it's there for.

 

[thera33]

I'm a female. Isn't anyone reading that part right, LOL!
But LucyMO, this is where I'm coming from: this is precisely my understanding of the CSPA. If your case is current, and you've already waited the 10 years, why put it another 10 years for all you know?

As for xerostomic, I get what you're saying too, the coin flips both ways; if CSPA allows everyone who missed out on F4 because they aged out to move to F2B then there will be a huge backlog, and even if they stood to rewrite the Act, there'd be a lot of loopholes to cut out.

I've spoken to a lawyer, and outside of telling me to go to immigration court if I'm successful in my father's interview, it relies on the discretion of the immigration officer.
Best I can do is have all my required documents ready, and if that be the case, try and present a strong case in hoping theings sway in m favour.
That being said - all I can do is wait.
Thats the hard part.

Why dont you just email the US embasy in Jamaica, they are quick to respond. Just follow the automaic reply email instructions. They will tell you will be sucessful in gettting your IV along with your father at the same time in terms of you being aged out.

 

[jahkissez]

If it is a law then it should be applied to every one and if it is at the discretion of adjudicating officer then it's not a law becuase the law doesn't leave this issue to some kind of discretion.
I wish you best of luck. let us know if you suceed. by the way are you trying retain automatically or by filing new I-130.

I'm trying to retain automatically, I was included in my father's original petition in 1997.

@thera33 - I can't ask them until the visa date is current or there is a visa number available.
cases are left to the discretion of the officer, aren't they the ones who ultimately decide who gets the visa or not?

 

[xerostomic]

I'm trying to retain automatically, I was included in my father's original petition in 1997.

@thera33 - I can't ask them until the visa date is current or there is a visa number available.
cases are left to the discretion of the officer, aren't they the ones who ultimately decide who gets the visa or not?

Did you check your age by using formula of substracting I-130 pending time from your age and the number of days your petition was pending after your PD became current ( assuming your PD is already current ). If it's 21 then you are safe.
I am doubtful about retention of PD automatically as small number of ppl who succed in getting old PD through court or BIAwere those who actually filed new I-130's except Maria Gracia, but as your lawyer told you it's at the discretion of adjudicating officer. Even if he goes against law no one is gonna ask him and this is rather written in law.
current USCIS stance is that FB2b is for unmarried children of permanant resident, so one cann't qulify for FB2b unless his parents are permanant resident upon entering US.
Secondly, USCIS's current interpretation of this clause is that, '' it speaks about automatic coversion from FB2A to FB2b or FB2b to FB1 and they say that CSPA in this situation doesn't change existing law".
I am telling you these things because they may tell you same things during your interview so you need to know how to answer these questions.
good luck

 

[TheRealCanadian]

as your lawyer told you it's at the discretion of adjudicating officer. Even if he goes against law no one is gonna ask him and this is rather written in law.

If it's a USCIS error then the decision can be appealed. If it's a consular officer it's a bit murkier, but if he denies it based on a question of law (instead of a question of fact) it can be appealed.

 

[jahkissez]

Just an update.
Still waiting on my father's interview. Its crazy that the August bulletin only showed a weeks movement in priority dates. Looks like it'll be by December or so before the PD becomes current.
Everyone says I still have to wait until the interview date to determine whether or not I can immigrate with my father.. the wait is the hard part..

Has anyone gotten thru as yet?

 

[jahkissez]

Another update, I'd sent this email to NVC and this is the response..
-----------------------------------

On Mon, Sep 29, 2008 at 9:13 AM, NVC Inquiry <NVCInquiry@state.gov> wrote:

Dear Madam,

Your inquiry has been received at the National Visa Center (NVC).

Please be advised that, as of April 4, 2008, our office has revised our guidelines for communication between the National Visa Center and the public. We are now required to verify case information each time we receive an inquiry.

According to U.S. law, the National Visa Center is only permitted to discuss details of a visa case with authorized representatives and when provided with all of the following information:

" NVC case number or CIS receipt number
" Petitioner's name and date of birth
" Beneficiary's name and date of birth
" Your full name

If you are corresponding regarding an I-140 petition you must provide the following information:

" NVC case number or CIS receipt number
" Name of the petitioning company
" Beneficiary's name and date of birth
" Your full name

Please resubmit your inquiry including the required information.

Regards,
TAD
National Visa Center
Written Inquiry Unit
SI International, Support Contractor
NVCInquiry@state.gov
This email is Sensitive but Unclassified based on the definitions provided in 12 FAM 540.
Any information in this transmission pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential under Section 222(j) of the Immigration and Nationality Act (INA) [8 US C. Section 1202]. Access to and use of such information must be solely for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States under INA 222(j) and as specified in FAM guidance. If you have received such information in error, do not review, retransmit, disclose, disseminate, use, or take any action in reliance upon this information, and contact the sender as soon as possible.
----------------------------------

Another question: does your current situation have any bearing on the immigration officer's decision? My brother and I both have our degrees and are both employed.. does this make a difference?

Thanks.