Need Help - India F4 CSPA "Seek to Acquire"

N

newuser999

New Member
Hello everyone,
Hope you all are doing well.
I have what I feel a very unique situation and would very much appreciate an expert advice.

I filed an I-130 petition for my sister.
Priority Date: Dec 19, 2004
I-130 Receipt Notice: Jan 03, 2005
I-130 Approval Notice: Oct 27, 2010
PD became current: Apr 01, 2020
Sister's child's DOB: Aug 30, 1993

Based on above dates, I believe the child is eligible for CSPA. Please let me know if you think I am wrong.

Now during filing stage my agent filed DS-260 for my sister and her spouse in 2018. The child's name was not there for DS-260 as he/she was above 21 at the time and my agent told us that we will wait till out PD becomes current and if eligible for CSPA we will ask the consulate to allow us to file DS-260 for the child.

Now in April when PD became current they received an interview letter in march for interview scheduled for 1st week of April. My agent also sent a request to consulate to consider the child for CSPA as we believe he was eligible. But 2-3 weeks before the interview the consulate closed due to Covid-19 and cancelled all the interviews. After that we received the reply from consulate stating that everything is closed and "inquire" again when the consulates reopen. After that Trump ban happened in the last week of April which he extended in June till December 2020. In the mean time my agent again sent the request to consulate in July but received the reply to inquire again after the ban is lifted.
Now the ban is extended again till March 31 2021. We thought that Biden would rescind the ban but he didn't. Now for the child to be considered for CSPA we need to fulfill the "Sought to Acquire" criteria within a year from the day the priority date becomes current. But because of the ban and Covid closure summing upto a full year it is almost impossible that we will be able to fulfill the criteria by filing DS-260 because the consulate is giving automated reply about the ban.

On the USCIS website it is stated that the criteria of "Sought To Acquire" can be fulfilled by:
1. Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);
2. Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the Department of State (DOS);
3. Paying the immigrant visa fee to DOS;
4. Paying the Affidavit of Support (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);
5. Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.

From above it seems anything that has to do with DOS is not possible within 1 year timeframe as the DOS handles the processing outside of US through consulates which we know aren't helping till the ban is in place. Which leaves us with two from the above options(1 & 5). So my questions are as follows:

-- Is the child eligible for CSPA??
If Yes
-- Does the child need to fulfill more than 1 of the above 5 options or fulfilling only 1 of them does the work??
-- Do I need to file the I-485 or I-824 on behalf of the child??
-- Can the child file I-485 or I-824 on her behalf??
-- Will the consulate allow the DS-260 to be filled after the 1 year timeframe when consulates reopen given the circumstances and consider the child for CSPA??(its not our fault that we aren't able to file DS-260).
-- (Incase I am wrong) Can I/child fulfill any of the above options that has to do with the DOS from inside the US??
-- As the interview was cancelled by the consulate, when the consulate starts the processing again will they send the interview invite again or do we need to make an appointment by ourselves this time.

I forgot to mention that the child is currently in US on student visa if that changes anything.
Please help/advice me what are our options.
Thanks
 
Based on the data you have provided above the derivative‘s CSPA age was 20 years 9 months when a visa became available, so was protected by CSPA.

It is a pity the agent decided to leave it till the consulate. Usually what one will do in this circumstance is contact NVC and get the derivative added back to the case so that documents, fees etc can be done along with the rest of the family before interview. Anyway that is water under the bridge. I am not sure, if you contact NVC now if they will allow her to be added onto the case at this stage. All you can do is ask, it’s worth a try anyway, if they add her on it is a simple solution then as she can immediately file DS260.

Only one of the 5 “sought to acquire” factors has to be met. 2, 3 and 4 are usually done at NVC stage for consular processing. I485 is not an option at present -the problem here is that the daughter cannot file AOS as a derivative before the principal is processed -her standing in the case is entirely dependent on the principal getting a visa and entering the US (or adjusting if in the US) before or with her. I don’t know how an I824 would work in this instance, perhaps another poster here will have an idea.
 
Thanks so much for replying,
I researched a bit about I-824 and found that it has to be filed only by principal applicant after coming to USA that too within 1 year of visa availability.
So from my understanding now she can only be added by DOS only via consulate processing. Nothing can be done from within USA.

I did contact NVC and they said that they have sent our case-file to the consulate since mid march of 2020 and asked us to contact the consulate in this regards. We have been doing exactly that since the priority date became current but haven't received any substantial reply.

I was wondering if this situation warrents for "Extraordinary Circumstances" as we have tried contacting the consulate multiple times from our side to let us fulfill the sought to acquire criteria but they didn't helps us because of closure of consulate due to Covid and trump ban.
Please reply what you think about this.
 
I’m not sure If that would work. As I indicated above, most people have this done before it gets to the consulate. However, if you have still had no luck from the consulate by then that may be your only option to try. The only other thing I can think of absent a response from the consulate is to get your congressperson involved and perhaps they can get the consulate to open the case for you.
 
Ok I will see what I can do and also try contacting the consulate again now that the ban has been lifted.

Thank you so much for helping! More power to you.
 
newuser999 said:
Hello everyone,
Hope you all are doing well.
I have what I feel a very unique situation and would very much appreciate an expert advice.

I filed an I-130 petition for my sister.
Priority Date: Dec 19, 2004
I-130 Receipt Notice: Jan 03, 2005
I-130 Approval Notice: Oct 27, 2010
PD became current: Apr 01, 2020
Sister's child's DOB: Aug 30, 1993

Based on above dates, I believe the child is eligible for CSPA. Please let me know if you think I am wrong.

Now during filing stage my agent filed DS-260 for my sister and her spouse in 2018. The child's name was not there for DS-260 as he/she was above 21 at the time and my agent told us that we will wait till out PD becomes current and if eligible for CSPA we will ask the consulate to allow us to file DS-260 for the child.

Now in April when PD became current they received an interview letter in march for interview scheduled for 1st week of April. My agent also sent a request to consulate to consider the child for CSPA as we believe he was eligible. But 2-3 weeks before the interview the consulate closed due to Covid-19 and cancelled all the interviews. After that we received the reply from consulate stating that everything is closed and "inquire" again when the consulates reopen. After that Trump ban happened in the last week of April which he extended in June till December 2020. In the mean time my agent again sent the request to consulate in July but received the reply to inquire again after the ban is lifted.
Now the ban is extended again till March 31 2021. We thought that Biden would rescind the ban but he didn't. Now for the child to be considered for CSPA we need to fulfill the "Sought to Acquire" criteria within a year from the day the priority date becomes current. But because of the ban and Covid closure summing upto a full year it is almost impossible that we will be able to fulfill the criteria by filing DS-260 because the consulate is giving automated reply about the ban.

On the USCIS website it is stated that the criteria of "Sought To Acquire" can be fulfilled by:
1. Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);
2. Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the Department of State (DOS);
3. Paying the immigrant visa fee to DOS;
4. Paying the Affidavit of Support (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);
5. Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.

From above it seems anything that has to do with DOS is not possible within 1 year timeframe as the DOS handles the processing outside of US through consulates which we know aren't helping till the ban is in place. Which leaves us with two from the above options(1 & 5). So my questions are as follows:

-- Is the child eligible for CSPA??
If Yes
-- Does the child need to fulfill more than 1 of the above 5 options or fulfilling only 1 of them does the work??
-- Do I need to file the I-485 or I-824 on behalf of the child??
-- Can the child file I-485 or I-824 on her behalf??
-- Will the consulate allow the DS-260 to be filled after the 1 year timeframe when consulates reopen given the circumstances and consider the child for CSPA??(its not our fault that we aren't able to file DS-260).
-- (Incase I am wrong) Can I/child fulfill any of the above options that has to do with the DOS from inside the US??
-- As the interview was cancelled by the consulate, when the consulate starts the processing again will they send the interview invite again or do we need to make an appointment by ourselves this time.

I forgot to mention that the child is currently in US on student visa if that changes anything.
Please help/advice me what are our options.
Thanks
Click to expand...
Hi can I know about your cspa child was included for immigration visa? I have similar case for my nephew. Your guidance will be appreciated. When did you get visa date for your case? Was it in Mumbai consulate? Thanks
 
Hi, You can email me if you want to know any thing about cspa xxxxxx
chandrika C said:
Hi can I know about your cspa child was included for immigration visa? I have similar case for my nephew. Your guidance will be appreciated. When did you get visa date for your case? Was it in Mumbai consulate? Thanks
Click to expand...
 
Last edited by a moderator:
chandrika C said:
Hi can I know about your cspa child was included for immigration visa? I have similar case for my nephew. Your guidance will be appreciated. When did you get visa date for your case? Was it in Mumbai consulate? Thanks
Click to expand...
Visa Officer must have refused your visa because of over age , i just read your questions
currently NVC is processing interviews with DQ Dec 2018 to March 2019
Your age get freezed once your PD become current in Chart A
 
@SAMAR SANDHU - your contact information has been removed from your post above. This forum is meant for providing assistance to members publicly do that others may benefit from such.
 
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