quote:

Originally posted by Rough Neighbor:
Form I-824 is being filed to request for further action on an 'approved' petition or application, which in your case should have been based upon your parent's I-485 approval.

Hm.. I think that I-824 is filled in connection with approved I-140 (as with approved I-130 in family based applications) to "ask" that the process for particular person continues abroad. However, no action for dependant will be taken until after the principal beneficiary is approved (for visa or adjustment of status).
Makes sense?

Anyway

"...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. "

Oops! I beg to disagree, sorry.

This is how USCIS expounded on Section 3 of the CSPA in part: Note: An alien may benefit from section 3 of the CSPA if the alien “sought to acquire” the status of an LPR within one year of visa number availability. The filing of the Form I-485 within one year of the immigration petition approval date (or visa becoming available subsequent to petition approval date, whichever is later) has been determined to meet that definition.

Meaning, there are various other factors that affect a derivative beneficiary's CSPA coverage such as: I-140 receipt date, how long it's been pending, and the child's age on the first day as per DOS Visa Bulletin that the visa for the I-140 category became available. But NOT including as a determinant basis as to when Form I-824 was filed.

Secondly, Form I-485 instructions state that Form I-824 'should be filed' concurrently with the I-485, why? just "to allow the derivatives to immigrate to the United States without delay if the principal's adjustment of status application is approved." It's in a suggestive context to me that by no means connotes that filing of I-824 later violates the rules or would result in an outright denial.

My previous post was case-specific to the OP's situation. He said that neither NVC nor USCIS has any update on the previously filed I-824 on his behalf.

Ah well, if I were in his shoes, I won't put my fate at the mercy of an over-burdened, disorganized (such as decision templates reflecting wrong alien names, A#'s, etc.), miserably inept (excuse the language), and seriously backlogged agencies, the fact that I have an option to file a new Form I-824.

Also I maintain what I said before that the I-824 is being filed against the principal's I-485, not against the I-140. Yes, the I-140 is the base petition, but its mere approval doesn't proffer any status or visa benefit by itself yet - its the visa number availability, in turn, for which the I-485 filing and approval hinges. Please read I-824 instructions Step 1. 2. B.

And just a side note, whereas I'm not sure about what you meant, but I-824 doesn't apply for "accompanying or following-to-join dependents" in any I-130 route.

OK, let's discuss this a little further...

quote:

Originally posted by Rough Neighbor:
This is how USCIS expounded on Section 3 of the CSPA in part: Note: An alien may benefit from section 3 of the CSPA if the alien “sought to acquire” the status of an LPR within one year of visa number availability. The filing of the Form I-485 within one year of the immigration petition approval date (or visa becoming available subsequent to petition approval date, whichever is later) has been determined to meet that definition. .

I agree, but the way I read it, it is only relevant for the alien (seeking CSPA protection) who is in the USA and can file I-485. If that person is not in the USA, I-824 is needed so "USCIS to notify a different U.S. Consulate or Port-of-Entry concerning the approval of an application or petition. If approved, USCIS will cable information regarding the approval of your application or petition to a different consulate or Port-of-Entry than originally requested."(Instructions 1.1.B) It is needed if derivate is taking a different route than principal beneficiary. Some years back, I-824 was needed even if principal beneficiary was going to apply for an immigrant visa abroad and that was indicated on the I-140 or I-130. With I-824, consulate is informed about approved petition.

quote:

Originally posted by Rough Neighbor:
Meaning, there are various other factors that affect a derivative beneficiary's CSPA coverage such as: I-140 receipt date, how long it's been pending, and the child's age on the first day as per DOS Visa Bulletin that the visa for the I-140 category became available. But NOT including as a determinant basis as to when Form I-824 was filed..

again, my understanding is that it is very important when I-824 was filed (what if there is no I-485 for "CSPA" alien?).

VISAS - INFORM CONSULS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: CHILD STATUS PROTECTION ACT: ALDAC #2

"....verify that the alien sought LPR status within one year of visa
availability. Under the revised guidance, this generally
means that the applicant must submit the completed DS-230,
part 1 (instead of having to file a visa application)
within one year of a visa becoming available. However, if
the principal applicant adjusted to LPR status in the U.S.
and the derivative seeks a visa to follow to join, then
the law shall be interpreted to require generally that the
principal have filed a Form I-824 for the derivative
within one year of a visa becoming available."
or I-140 /I-130 approval whichever comes latter (in some interpretations).

quote:

Originally posted by Rough Neighbor:
Secondly, Form I-485 instructions state that Form I-824 'should be filed' concurrently with the I-485, why? just "to allow the derivatives to immigrate to the United States without delay if the principal's adjustment of status application is approved." It's in a suggestive context to me that by no means connotes that filing of I-824 later violates the rules or would result in an outright denial..

I agree with that. I-824 only has to filed within a year of a visa becoming available to be able to use CSPA.

quote:

Originally posted by Rough Neighbor:
... the fact that I have an option to file a new Form I-824 ..

Does he if he counts on using CSPA, even though it seams that the PD became current more than a year ago?

quote:

Originally posted by Rough Neighbor:
And just a side note, whereas I'm not sure about what you meant, but I-824 doesn't apply for "accompanying or following-to-join dependents" in any I-130 route.

If on I-130 was indicated that the beneficiary is going to do AOS but he/she is no longer in the USA and wishes to get an immigrant visa, by filing I-824 the process will be re-routed.
And, more often - it is used in Follow-to-join. I-824 is nicknamed "follow to join" form.

9 FAM 42.42 PN3.4 Form I-824, Application for
Action on an Approved Application or Petition
(TL:VISA-563; 08-01-2003)
Legal residents who obtained status by adjustment of status in the United
States, can request that Department of Homeland Security (DHS) send the
Form I-824, Application for Action on an Approved Application or Petition, to
post as verification of their status. The Form I-824 provides the information
necessary to process a following-to-join case. At the legal resident's
request, DHS will sometimes send a cable to post verifying the principal
alien's resident status.

Rough Neighbor, I wanted to keep this thread here and not in PM, in hope someone like you will take time to think over Prakash's situation... so we can discuss it.

I have read this very confusing information in one CSPA memo

I am putting my scenarion in this, They havent mentioned anything about following to join case who is in abroad and visa number was not available and visa retrogession

PLESE SEE MY COMMENT IN CAPITAL LETTER

the beneficiary’s age is to be calculated by first determining the age of the alien on the date that a visa number becomes available(WHAT WAS THAT DATE IN MY CASE??).
The date that a visa number becomes available is the approval date of the immigrant petition if, according to the DOS Visa Bulletin, a visa number was already available for that preference category on that date of approval(WAS IT AVAILABLE IN MY CASE?? I 140 IS APPROVED IN JUNE 5 2005)
. If, upon approval of the immigrant petition, a visa number was not available, then the date for determining age is to be the first day of the month of the DOS Visa Bulletin which indicates availability of a visa for that preference category. (CURRENT VISA BULETTIN SHOWS MY PD IS NOT CURRENT FOR EB-3, INDIA)
From that age, subtract the number of days that the petition was pending,
provided the beneficiary files a Form I-485, based on the subject petition, within one year of such visa availability(HERE IN MY CASE THEY HAVE FILED I 824). The “period that a petition is pending” for the Form I-140 is the date that the Form I-140 is properly filed (receipt date and not priority date) until the date an approval is issued on the petition(PENDING PERIOD IS 17 MONTHS).

MY PARENTS PD IS FEB 2003, WHICH WAS CURRENT IN JAN 2004 AND THEY FILED THEIR I 140 ANF LATER IT WAS APPROVED IN AUG 2005, WHAT I SEE IN CURRENT VISA BULLETINE IS CUT OFF DATE IS OCT 2001, HOW COME IT IS POSSIBLE ?? IT WAS CURRENT BACK TWO YEARS AND NOW THE CUT OFF DATE IS OF YEAR 2001.
DOES IT MEAN THAT I HAVE TO WAIT UNTILL CUTOFF DATE BECOMES ABOVE FEB 2003(WHICH WAS MY PARENTS PD AND SO MINE) ???

ANERI, i think ur calculation was wrong as per this memo, correct me if i m wrong, coz visa number was not available to me on the date I 140 approval(ie aug 2005) becoz PD was not current on that date n so we cant freeze my age on I 140 approval date

quote:

Originally posted by aneri:
The time I-140 had been pending is: Jan 2004 (receipt date)- June 2005 (approval date) = 17 months

so, as long as the PD for I-140 became current before May 2006, you should be considered under 21 for immigration purposes.
In May 2006, you were 22y 5m. From that age you can deduct 17 months (I-140 pending) which puts you at 21.
You can look up when PD became current at the link I gave you (under employment category 3 and your country).

Now, I-140 and I-485 were filed together. And in January 2004, all the categories were current. That suggests that your parents' PD may had been current at the time when you were under 21. In that case, you did not aged-out either.

If PD was current at the time of the I-140/I-485 submission, what took so long for your parents to get green cards?! And you have no news on I-824?

Thare was some retrogesion in employment based PDs, but I am not too familiar with that.

There are several conditions for taking advantage of CSPA. The other is that derivate has to "sought to acquire" benefits within a year. I-824 was filed in Jan 2004, and that should cover that part.

Anyhow, if I were you I would try to find out what happened to I-824 and get that going. Have you ever heard from the consulate? NVC?

And - if you get married you can no longer be considered a child and dependant on your parents' petition.

quote:

Originally posted by Prakash_NEED_Help:
ANERI, i think ur calculation was wrong as per this memo, correct me if i m wrong, coz visa number was not available to me on the date I 140 approval(ie aug 2005) becoz PD was not current on that date n so we cant freeze my age on I 140 approval date.

Let's see one more time...

quote:

Originally posted by aneri:
so, as long as the PD for I-140 became current before May 2006, you should be considered under 21 for immigration purposes.
In May 2006, you were 22y 5m. From that age you can deduct 17 months (I-140 pending) which puts you at 21.

I don't know when PD became current, so I made a reverse calculation showing by what date PD should have become current if you were to be considered under 21. And that's May 2006. I did not "freeze" or even mentioned your age on I-140 approval date.(June 2005)

quote:

Originally posted by Prakash_NEED_Help:
1 the beneficiary’s age is to be calculated by first determining the age of the alien on the date that a visa number becomes available(WHAT WAS THAT DATE IN MY CASE??)..

we are not sure how old you were when PD became current, so let's put X

quote:

Originally posted by Prakash_NEED_Help:
The date that a visa number becomes available is the approval date of the immigrant petition if, according to the DOS Visa Bulletin, a visa number was already available for that preference category on that date of approval(WAS IT AVAILABLE IN MY CASE?? I 140 IS APPROVED IN JUNE 5 2005)??)

we are not sure... but it doesn't hurt since

quote:

Originally posted by aneri:
Now, I-140 and I-485 were filed together. And in January 2004, all the categories were current. That suggests that your parents' PD may had been current at the time when you were under 21. In that case, you did not aged-out either.

so there is no issue regarding age if that's scenario (don't forget there are other conditions to claim CSPA)

quote:

Originally posted by Prakash_NEED_Help:
1 If, upon approval of the immigrant petition, a visa number was not available, then the date for determining age is to be the first day of the month of the DOS Visa Bulletin which indicates availability of a visa for that preference category.

so it is still the same X (how old you were when PD became curent)

quote:

Originally posted by Prakash_NEED_Help:
2 From that age, subtract the number of days that the petition was pending,
provided the beneficiary files a Form I-485, based on the subject petition, within one year of such visa availability(HERE IN MY CASE THEY HAVE FILED I 824). The “period that a petition is pending” for the Form I-140 is the date that the Form I-140 is properly filed (receipt date and not priority date) until the date an approval is issued on the petition(PENDING PERIOD IS 17 MONTHS).

X - (minus) number of days petition was pending

quote:

Originally posted by aneri:
The time I-140 had been pending is: Jan 2004 (receipt date)- June 2005 (approval date) = 17 months .

X - 17months = 21 years old

-> X = 17months + 21 years old ( 28 Dec 2004)

-> X = 28 MAY 2006

so, if your PD bacame current in April 2006, you were under 21 for immig. purpose: 22y4m - 17months < 21 y/o
if your PD became current in Jun 2006, you were onver 21 for immig. purpose: 22y6m - 17 months > 21 y/o

or the way the memo says:

1 Let's say PD becomes current in April 2006, you were 22y4m
2 17 months
3 Determined age = 1 - 2 = 22y4m - 17m = 20 y 11 m

That was the calculation that's described in the memo. Just since I was not sure when PD became current, I calculated what would be the latest date for PD to become current so you can still be considered under 21. It may very well be that (as per Archived Bulletin) PD was current in 2004.

However, as you noticed there was a retrogresion. I hope somebody here knows how that may affect your case. I have a general idea but that's not enough to claim something.

Who did all the papers for your parents? Can they check with that person what should be done?

This message has been edited. Last edited by: aneri,

Despite the unknowns, my gut feeling suggests that the OP has a big chance of being covered basing on his 1983 birth year. CSPA is a very complex statute that both DOS and CIS had to issue a huge number of interpretative memos since its passage. I don't know what the OP's parents are up to all along, but I think, yeah, it's time to get down to the nitty-gritty dimensions of this case with an experienced professional. Carl Shusterman is one CSPA expert that I can suggest.

Thanks aneri for recalling whole things.. I understood wat u said.. but still few questions arise like
1. In the Jan 2004 PD of FEB 2003 was current then y visa bulletine of april 2008 shows cut off date of OCT 2001 for same category and country ??
2. and If i go by visa bulletin then untill PD of Feb 2003 is not current I have to wait, IS it TRUE ??

well papers for my parents petition was done by "Smith, White, Sharma and Halpern" law firm located in atlanta, I have queried to them but they are not answering me properly..

quote:

Originally posted by aneri:
so, as long as the PD for I-140 became current before May 2006, you should be considered under 21 for immigration purposes.
In May 2006, you were 22y 5m. From that age you can deduct 17 months (I-140 pending) which puts you at 21.

I don't know when PD became current, so I made a reverse calculation showing by what date PD should have become current if you were to be considered under 21. And that's May 2006. I did not "freeze" or even mentioned your age on I-140 approval date.(June 2005)

Who did all the papers for your parents? Can they check with that person what should be done?[/QUOTE]

see this memo

http://www.uscis.gov/files/article/CSPA_factsheet_050608.pdf

could benefit many and also sign and support
http://www.expatsvoice.org/forum/petition.php

Aneri,

Thanks for ur kind explanation through out my case.. well now there is some update and i m gng to share it with u..

My parents hired new lawyer before 2 month, lawyer asked USCIS for my case status and also they sent G 639(Freedom of Information/Privacy Act) signed by me. USCIS replied on that matter that

"This pertains to your inquiry about the processing of Form I-824 you filed on Jan 15 2004, In the form you checked the block states "I am requesting that a US Consulate be notified that my status has been adjusted to permanent residence. Please notify the US consulate at:"You entered "follow to join" in this block and failed to indicate the location of the US consulate the report was to be made. Your legal representative provided the location of the consulate via telephone on this date June 16 2008. Accordingly, a copy of the permanent documents has been forwarded to the National Visa Center for further transfer to the US consulate in Mumbai, India."

After receiving this letter I emailed NVC on 9 July, 2008 "whether they received this I 824 case or not?" and I have got replied that "NVC did not receive such case".

Now here I want to know that
1. When will USCIS forward I 824 (following to join) cases to NVC ? Are they forward to NVC only when priority dates become current ?? or they simply forward approved cases to NVC ?? How will NVC approach once they get file from USCIS ?? Will NVC seat back until priority dates becomes current or How do they calculate/find Priority dates of I 824(my case is very complex, for detail you can read my posts) ??

Thanks in advance

quote:

Originally posted by Prakash_NEED_Help:
Thanks aneri for recalling whole things.. I understood wat u said.. but still few questions arise like
1. In the Jan 2004 PD of FEB 2003 was current then y visa bulletine of april 2008 shows cut off date of OCT 2001 for same category and country ??
2. and If i go by visa bulletin then untill PD of Feb 2003 is not current I have to wait, IS it TRUE ??

well papers for my parents petition was done by "Smith, White, Sharma and Halpern" law firm located in atlanta, I have queried to them but they are not answering me properly..

quote:

Originally posted by aneri:
so, as long as the PD for I-140 became current before May 2006, you should be considered under 21 for immigration purposes.
In May 2006, you were 22y 5m. From that age you can deduct 17 months (I-140 pending) which puts you at 21.

I don't know when PD became current, so I made a reverse calculation showing by what date PD should have become current if you were to be considered under 21. And that's May 2006. I did not "freeze" or even mentioned your age on I-140 approval date.(June 2005)

Who did all the papers for your parents? Can they check with that person what should be done?

[/QUOTE]