what benifit a derivatives child get in parents employmnet based immigrant petition

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prakash_534

Registered Users (C)
Hello all,

I am regular user of this forum and it helped me clear many doubts regarding USA immigration system, I had posted one thread regarding my problem before few months and I have got very good response from members of this site,THANK YOU . I have observed in my past thread that some information was not clear to answer so here am starting that same thread again with very clear information , Please help me


I have query regarding Employment based immigration petition, My parents are in USA and they had filed Employment based immi petition and It is approved. They have included my name in their petition as benificiery, I am living in India right now. please go through below details and clear me some doubts

My parents petition details are as below with approval notice dates

1 Labor Certification (Form ETA-750) Labor Law, Approved in March 2003--APPROVED

2 Concurrently filed I 140 and I 485

3 I 140 Section 203 (b)(3)(A) (i)or(ii), (Approval notice details)--APPROVED
Rcvd dt:Jan 16 2004,Priority dt:Feb 3 2003,Notice dt:June 5 2005

4 I 485 (Approval notice details)--APPROVED
Rcvd dt:Jan 16 2004,Priority dt:Jan 16 2004,Notice dt:Sept 11 2007

5 I 824 For derivative unmarried child,date of birth 28 dec 1983
Rcvd dt:Jan 15 2004,Notice dt:Jan 16 2004

6 parents GOT GC in september 2007,

Which priority date will be considered for derivatives child ?
Does CSPA help me getting aged out?? (My date of Birth is 28 dec 1983), Please see the notice details to make decision
How long will it take to approve(clear) such kinda petition ?? likely dates
What if i m getting marry before this petition approve??
Do i apply for F1(student visa) or H1B visa while this petition is pending ??

Please answer me all of this question so i can make decision for my coming years.
I would really appreciate your detailed reply.

Thanks in advance
Prakash Patel
 
Uh did you notice this is the "family based" GC forum :rolleyes:

Anyway, the simple answer is that spouses and minor children do qualify for derivative benefits in Employment Based I-140 petitions. The same is not generally true of family based I-130 petitions.
 
Hello Prakash,

I agree with boatbod that you might be better off asking in the EB forum since your case is an EB derivative case. But, I'll try to give you my understanding of your situation, but keep in mind my extremely limited knowledge of the EB process.

Your priority date, as a derivative of your parent's EB application, is the same as your parent's priority date, when the labor certification was filed. I gather this is Feb 3, 2003. All EB categories were current for all of 2003, so I believe your parent could have applied anytime after their LC and it puzzles me why they waited until Jan 2004. Be it as it may, it appears you were under 21 when a visa number became available in 2003, and your parent filed I-824 for you within one year of when the visa number became available, which in my understanding locks in your age for purposes of the CSPA so you remain eligible for following-to-join. But understand the CSPA is fairly complex, so you may want to consult with an attorney (maybe the one who worked on your parent's case?)! Also, due to retrogression, it's quite possible that your priority date is not current right now; I'm assuming the principal applicant is from India (but correct me if I'm wrong), and if they applied in EB-2, visa numbers are currently unavailable, and in EB-3 visa numbers are only available for PDs before 2001. (EB-1 is current.)

About your marriage question, my understanding is that you must be unmarried to be eligible for derivative benefits. Getting an F-1 might be difficult since the I-824 establishes that you're seeking an immigrant benefit. H-1B is entirely possible, it's a dual intent visa/status (but it's a lottery and it's not assured you get a visa, plus you need a sponsoring company). L-1 could also be a possibility.
 
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prakash_534 said:
Hello all,

I am regular user of this forum and it helped me clear many doubts regarding USA immigration system, I had posted one thread regarding my problem before few months and I have got very good response from members of this site,THANK YOU . I have observed in my past thread that some information was not clear to answer so here am starting that same thread again with very clear information , Please help me


I have query regarding Employment based immigration petition, My parents are in USA and they had filed Employment based immi petition and It is approved. They have included my name in their petition as benificiery, I am living in India right now. please go through below details and clear me some doubts

My parents petition details are as below with approval notice dates

1 Labor Certification (Form ETA-750) Labor Law, Approved in March 2003--APPROVED

2 Concurrently filed I 140 and I 485

3 I 140 Section 203 (b)(3)(A) (i)or(ii), (Approval notice details)--APPROVED
Rcvd dt:Jan 16 2004,Priority dt:Feb 3 2003,Notice dt:June 5 2005

4 I 485 (Approval notice details)--APPROVED
Rcvd dt:Jan 16 2004,Priority dt:Jan 16 2004,Notice dt:Sept 11 2007

5 I 824 For derivative unmarried child,date of birth 28 dec 1983
Rcvd dt:Jan 15 2004,Notice dt:Jan 16 2004

6 parents GOT GC in september 2007,

Which priority date will be considered for derivatives child ?
Does CSPA help me getting aged out?? (My date of Birth is 28 dec 1983), Please see the notice details to make decision
How long will it take to approve(clear) such kinda petition ?? likely dates
What if i m getting marry before this petition approve??
Do i apply for F1(student visa) or H1B visa while this petition is pending ??

Please answer me all of this question so i can make decision for my coming years.
I would really appreciate your detailed reply.

Thanks in advance
Prakash Patel
Click to expand...

go to www.expatsvoice.org and search the thread aging out. or search aging out on this forum

If you marry, then your parents will be unable to get you to the states for years


Seems you are protected by cspa so long as you remain unmarried. Your file should go to the NVC and they will send out packet 3 to your parents Once retuned and verified they will forward your file to the American consulate in India, for you to be called for interview/medical etc.,

Once the file leaves NVC there is no tracing of your paperwork
 
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boatbod said:
Uh did you notice this is the "family based" GC forum :rolleyes:

Anyway, the simple answer is that spouses and minor children do qualify for derivative benefits in Employment Based I-140 petitions. The same is not generally true of family based I-130 petitions.
Click to expand...

Sorry , you have lost me?

The OP is talking about employment based and think you are incorrect as I was the beneficiary of my husbands I140/I485 application and so were our minor children
 
susan ward, maybe you misread boatbod's reponse ... he implied it's an EB case and derivative benefits do apply in the OP's case. But it's good that you had the same experience.
 
ohhh m so sorry spam moderator boatbod
It was just misplaced in Family based category, will take care in future.

Thanks



boatbod said:
Uh did you notice this is the "family based" GC forum :rolleyes:

Anyway, the simple answer is that spouses and minor children do qualify for derivative benefits in Employment Based I-140 petitions. The same is not generally true of family based I-130 petitions.
Click to expand...
 
I don't believe that you qualify for CPSA, but that's just me. CPSA can knock around 16 months off your age based on the timeline you gave me in the other thread, but you're over 23. You need to contact an attorney who specializes in CPSA matters.
 
Is There Anyone Who Knows Cspa

well I am totally confused with how CSPA works, some people says, it helps me absolutely and some says not, IS THERE ANYONE WHO KNOWS CSPA IN DETAIL AND CAN RELATE IT WITH MY CASE ??
see this article http://www.hooyou.com/i140&i485/ageout.htm,
this one also http://www.ilw.com/articles/2002,1009-mehta.shtm

n yeah i dont understand, y CSPA interfere in derivatives benefit scenario, i dont understand Even if i m above 21 age when I 140 or LC is approved, It is my priority date which actually decided further action, correct me If i m wrong
anyways thanks




TheRealCanadian said:
I don't believe that you qualify for CPSA, but that's just me. CPSA can knock around 16 months off your age based on the timeline you gave me in the other thread, but you're over 23. You need to contact an attorney who specializes in CPSA matters.
Click to expand...
 
prakash_534 said:
well I am totally confused with how CSPA works, some people says, it helps me absolutely and some says not, IS THERE ANYONE WHO KNOWS CSPA IN DETAIL AND CAN RELATE IT WITH MY CASE ??
Click to expand...

Yes. It's called an attorney. Asking lay people on an internet message board about a relatively new and complex part of the law is guaranteed to get you contradictory results.

n yeah i dont understand, y CSPA interfere in derivatives benefit scenario, i dont understand Even if i m above 21 age when I 140 or LC is approved, It is my priority date which actually decided further action, correct me If i m wrong
Click to expand...

You're wrong. CPSA doesn't prevent you from aging out if your PD is before your 21st birthday. It merely allows you to take the time your I-140 was pending (and potentially, the LC) and subtract that from your current age. If that adjusted age is below 21, you're fine. If it's above 21, then you've aged out.

The other part of CPSA is that even if you do age out, it does appear to allow you to retain the PD for a later FB filing, which may be worth pursuing. But to retain the PD would certainly involve your parents retaining a good US attorney with CPSA experience.
 
Well, prakash, in my opinion your case hinges on whether the filing of the I-824 counts as you (or your parent as your agent) having acted on your permanent residency within one year from Feb 3, 2003, and if it preserves your age under the CSPA to be under 21 for purposes of following to join as a derivative minor child (and for how long?). If I had one question to ask an attorney, that's what I would ask.

Understand that the CSPA doesn't interfere with you in this case, it can only help. Without CSPA, you'd have aged out now and would not be able to apply as an unmarried child under 21 of your parent.
 
Here is quite comprehensive guidance on CSPA from a consular webpage (note that CSPA guidance has been changing over time and I'm not sure how recent the info here is).

The sections that I think may apply to you are:



12. [...] For Principals in F2A Cases, and For Derivatives in Preference and DV cases: Age is determined by taking the age of the alien on the date that a visa first became available (i.e., the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval).

14. It is important to note that once it is determined that CSPA applies and the alien's age is determined, the alien's age does not change. The alien retains the same age throughout the pendency of the case. (While the CSPA may prevent the alien's age from changing, the alien must of course still meet the other criteria for "child" status, including being unmarried, and therefore if the alien marries, the alien will lose "child" status, even though the alien's age, for immigration purposes, may be under 21 as a result of the CSPA.)

22. The requirement that the preference or DV applicant submit the DS-230, Part I within one year of visa availability shall apply only in cases where the principal applicant was processed for a visa at a consular post abroad. If the principal applicant adjusted status in the U.S. and a derivative is applying for a visa abroad to follow-to-join, then the date on which the derivative will be considered to have sought LPR status for purposes of satisfying CSPA Section 3 will generally be the date on which the principal (acting as the derivative beneficiary's agent) filed the Form I-824 that is used to process the derivative's following to join application. Therefore, in cases involving a derivative seeking to follow to join a principal who adjusted in the U.S., the derivative can benefit from the CSPA if the principal filed a Form I-824 for the beneficiary within one year of a visa becoming available (i.e., within one year of the case becoming current or petition approval, whichever is later). The instructions to Form I-485 (the adjustment application) advise aliens adjusting status in the U.S. who have derivatives abroad to file a Form I-824 for such derivatives, and the I-485 Form indicates that that Form I-824 can be filed simultaneously with the Form I-485 adjustment application. Therefore, the date on which the I-824 is filed may be the same date that the principal filed the I-485 adjustment application.
 
austriacus said:
14. It is important to note that once it is determined that CSPA applies and the alien's age is determined, the alien's age does not change. The alien retains the same age throughout the pendency of the case. (While the CSPA may prevent the alien's age from changing, the alien must of course still meet the other criteria for "child" status, including being unmarried, and therefore if the alien marries, the alien will lose "child" status, even though the alien's age, for immigration purposes, may be under 21 as a result of the CSPA.)
Click to expand...

Yet more proof that I really shouldn't be offering my thoughts on CPSA, since I got it wrong.

Seriously, our OP needs an attorney.
 
TheRealCanadian, I absolutely agree that we helped prakash as far as we could and now he needs to consult with an attorney (preferably one who has handled consular CSPA cases before). Whatever information I randomly pulled off of a consular website may or may not be updated or correct, I just thought I'd throw it out there.

But, prakash, come back and let us know what the attorney told you!
 
TheRealCanadian said:
You're wrong. CPSA doesn't prevent you from aging out if your PD is before your 21st birthday. It merely allows you to take the time your I-140 was pending (and potentially, the LC) and subtract that from your current age. If that adjusted age is below 21, you're fine. If it's above 21, then you've aged out.

The other part of CPSA is that even if you do age out, it does appear to allow you to retain the PD for a later FB filing, which may be worth pursuing. But to retain the PD would certainly involve your parents retaining a good US attorney with CPSA experience.
Click to expand...

prakash_534, the above quote from TheRealCanadian is correct. In your case, it appears that you will still be over 21 after the cspa calculations have been applied because 1-140 does not pend for that long - except your parent's 1-140 pended for over three years, which is highly unlikely in your case.

However, there is still hope. The part of CSPA you should try to apply to your case, is the second part of the clause that talks about retention of priority date. Basically what that means is that your parents who are now LPRs will file an I-130 for you as an unmarried son of an LPR, which will be under the F2b category, and then they can send a memo to USICS requesting to retain the priority date of the original petition that you aged out under. It wouldnt hurt to use a lawyer who is experienced in CSPA to help you communicate that to USICS.

Based on your post, the priority date you are trying to retain is the Feb 3 2003 priority date of the original l-140 application. If you are successful, then going by the current priority date of the F2b in the visa bulletin which is Feb 8, 1999, you have about 4 years to go before you become current, which is better than the 9 years you would have had if you were not able to retain the priority date.

I will strongly advise you NOT to get married before your petition is approved, because it can cause complications.

You cannot apply for F1 visa because it will be very difficult for you to prove a non-immigrant intent due to the application that your parents have filed for you. However, you should be able to apply for H1b because that has a dual intent.
 
TheRealCanadian said:
I don't believe that you qualify for CPSA, but that's just me. CPSA can knock around 16 months off your age based on the timeline you gave me in the other thread, but you're over 23. You need to contact an attorney who specializes in CPSA matters.
Click to expand...

Hi

The CSPA is complicated, but

As far as I can tell he was under 21years of age at I 140/I485 filing for his parents. An I 824 was filed at the same time(follow to join form was also filed concurrently for derivative) so CSPA applies and his age is locked at below 21years so it does not matter if he is any age now, he is still locked in at below 21years



The Number of years knocked off the beneficiary's age can be many, eg the time between I 140 or I 130 was filed and length of time it takes to be approved
 
susan ward said:
As far as I can tell he was under 21years of age at I 140/I485 filing for his parents. An I 824 was filed at the same time(follow to join form was also filed concurrently for derivative) so CSPA applies and his age is locked at below 21years so it does not matter if he is any age now, he is still locked in at below 21years
Click to expand...

One could argue that a visa was not available for him until the parents' approval date since he was doing FTJ.
 
TheRealCanadian said:
One could argue that a visa was not available for him until the parents' approval date since he was doing FTJ.
Click to expand...

Thats the problem,

I have a current CSPA law suit pending but before I filed law suit got 15 attorneys opinions on the case 10 agreed my son was protected and 3, thought maybe he was the others said he aged out !

At the end of the day, the CSPA should be read and interpreted expansively, the act says so and it is not. Also it does not matter what any attorney says, if they deny then the only course of action is to sue. The good news is the courts do tend to side with the Plantiff's

Great shame parents and children have to suffer so much stress at the hands of bureaucracy


Prakash

Contact Charles Wheeler, he wrote a book on the CSPA he is head of www.cliniclegal./org a not for profit group you should be able to contact him through there
 
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