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Thread: to CSPA FAN

  1. #1
    Guest
    I think we lucky because we have one of the importantlegislations in our time -- The Child Protection Act. The purpose of this law is to prevent the child from being separated from the parent when the later immigrated to the United States.
    The confusing part of the law is the part relating to derivative chdildren. This is the oe we are most concern wkith. There are 2 scenarios wherein shich there can be a derivative child. I stand to be cvorrected if tyhere are more:
    One is when an usc brother or sister petitioned a brother or a sister with child or children.
    The other is when an usc parent petitioned their children who also children of their own.

    Under the old dslaw, w;hen a derivative child became 21 years or old before the final visa adjudication, the derivative child is definitely ou of the process. However, it not now under The Child Protection Act.

    The law is very clear on this regard. It substantially states that the age of the alien (child) is determined on the date on which an immigrant visas number became available for the alien's parent.

    Let me give an example common to the above 2 scenarios:

    Supposed a petition was filed on behalf of the beneficiary when the derivative child was 10 years old.10 years and 7 months later, the visa number became available. This time, the child is 20 years and 7 months old. The visa took 8 months to process.The child is 21 years and 3 months old at the time the visa was handed to the parent. Under the CSPA, the child is still considered to be 20 years and 7 months old.

    Supposed in the example above, the child was 12 years old when dthe petition was filed. 10 years later, the visa # became available. This time the child is 22 years old. The petition was pending for 12 years. If we will construe the law liberally,the liberal interpretation will
    be the 12 years will reduced by it, so that the result will be zero.Under the Act the child;s age will be the age at the time the pletition was filed, which is 12 years old.

    In view of above, I believe that under no circumstances the child will age out no matter what formula one will use under the Act.

    Finally, let us deal on the matter of "Retention of Priority Date". It substantially states that if the chil dis determined to be 21 years ol under susections (a) (2) (A) and (d) the alien petition shall automatically converted to the appropriate category. this situation will soccur only if the aslien in the 2 example mentioned above failed to seek lawful plermenent resident status within one year from the time the visa number became available. To illutrate" supposed the says, dad, I will stayand get married but after 1 and half years later he change his mind. The petition will be converted to that of married son 21 old of over. If he did not get married, the appropriate category will be f2b. but the nmost important of this s ection is that the priority date shall be retained- that is the date upon the reciept of the origial petition

  2. #2
    Guest
    I think we lucky because we have one of the importantlegislations in our time -- The Child Protection Act. The purpose of this law is to prevent the child from being separated from the parent when the later immigrated to the United States.
    The confusing part of the law is the part relating to derivative chdildren. This is the oe we are most concern wkith. There are 2 scenarios wherein shich there can be a derivative child. I stand to be cvorrected if tyhere are more:
    One is when an usc brother or sister petitioned a brother or a sister with child or children.
    The other is when an usc parent petitioned their children who also children of their own.

    Under the old dslaw, w;hen a derivative child became 21 years or old before the final visa adjudication, the derivative child is definitely ou of the process. However, it not now under The Child Protection Act.

    The law is very clear on this regard. It substantially states that the age of the alien (child) is determined on the date on which an immigrant visas number became available for the alien's parent.

    Let me give an example common to the above 2 scenarios:

    Supposed a petition was filed on behalf of the beneficiary when the derivative child was 10 years old.10 years and 7 months later, the visa number became available. This time, the child is 20 years and 7 months old. The visa took 8 months to process.The child is 21 years and 3 months old at the time the visa was handed to the parent. Under the CSPA, the child is still considered to be 20 years and 7 months old.

    Supposed in the example above, the child was 12 years old when dthe petition was filed. 10 years later, the visa # became available. This time the child is 22 years old. The petition was pending for 12 years. If we will construe the law liberally,the liberal interpretation will
    be the 12 years will reduced by it, so that the result will be zero.Under the Act the child;s age will be the age at the time the pletition was filed, which is 12 years old.

    In view of above, I believe that under no circumstances the child will age out no matter what formula one will use under the Act.

    Finally, let us deal on the matter of "Retention of Priority Date". It substantially states that if the chil dis determined to be 21 years ol under susections (a) (2) (A) and (d) the alien petition shall automatically converted to the appropriate category. this situation will soccur only if the aslien in the 2 example mentioned above failed to seek lawful plermenent resident status within one year from the time the visa number became available. To illutrate" supposed the says, dad, I will stayand get married but after 1 and half years later he change his mind. The petition will be converted to that of married son 21 old of over. If he did not get married, the appropriate category will be f2b. but the nmost important of this s ection is that the priority date shall be retained- that is the date upon the reciept of the origial petition

  3. #3
    Guest
    I am sorry for the terrible spelling. It was sent out before I have the opportunity to edit it. I hope you will get the point I am driving at about the law.
    If you are interested you can reach me at www.bonicasal@aol.com

  4. #4
    Guest
    Boni:

    Your interpretation is the most optimistic scenario. In your first case the key term is "pending". If the INS defines "pending" as the x number of months it took to adjudicate the petition then they will reduce x number of months ( petition pending with INS ) from the age of child as of visa number availability date. So for eg if you have a child 22 years old under derivative rule ( F3 or F4 ) and the petition was
    pending for 6 months. He/she will still be over 21 and cannot get the visa. If they agree with you, I am all for it.

    The other scenario that you mention about retention of prirotiy date refers to (a)(2)(A) that is the F2A vs F2B category. There I agree with your interpretation that the petition gets tranferred to F2B ( over 21 ) category with the old priority date. Hoever, I do not know how it will apply to (d) derivative children. You see, the derivative children as we both agree are either under F3 or F4. The F3 is filed by the granparent of the child for the child's parent. The F4 is filed by uncle or aunt of the child. In either case either of the petitioner cannot petition for the child directly. Will the INS require a new F2B petition from the parent with old priority date? How long will it take to adjudicate? Or will the consulate accept the application? All these gray areas need to be resolved before any US Consulate will start issuing visas to these kids.

    I am hoping for your interpretation. However, I am not about to get the hopes up for my nephews and nieces yet. I do not want to dash their hopes. Let us wait and see.

  5. #5
    Guest
    Boni,
    I am still confused. The two cases you mentioned are the part that no one is clear about the new law. Your first case states that the "pending" period is from the time the visa number is available, to the time when the parents actually get the visa. However, there is another interpretation that it's from the time I-130 is filed (receipt date) until the date the visa number is available. I do hope that this is the case. For your second case, why is the child's age zero after the reduction?? I guess that's what I was confused about..

  6. #6
    Guest
    One thing I don't understand is that if the "pending period" is referring to the period from the time the visa number becomes available, until the final adjudication, why don't they just make the child's age fixed at the time when the visa number becomes available? For example, if the child is 21 years and 3 months old when the visa number becomes available, and if I-485 takes 6 months to process, then the child's age should be 21 1/4 - 1/2, which will make his age under 21, right? It doesn't make sense! Am I the other one who thinks this way? But then I might be trying to find ways to convince myself that the pending period is referring to the long 10+ years we've waited, which will make a lot more of us benefit from the law.

  7. #7
    Guest
    The term "reduce by - - petition was pending - - " do not apply in the first example. The law catigorically states that when the child is below 21 at the time the parent's visa # became available, that age of the child will stay below 21 (will be considered below 21) no matter how old is the child long after the visa is finally handed over to the parent.

    It is my opinion the term "reduce by - - -" will only apply in my example #2. I can not concieve of any case where will it fit. In my #2 example,it is not the age of the child that is reduce by the years of the pending petition, rather it is the # of years of the pending petition reduced by itself. I can not think of any way of interpreting the law differcently.

    With regars to the Rertention of Priority Date", the old petition will remain effective and valid. You do not need another petition because the law allow the old petition to be converted to the proper catigory, otherwise, the purpose of the law will be defeated.

    You do not speak of direct petition by an unlce or aunt here. This section refers to derivative children. They are the children of a beneficiary.

    To illustrate: a brother petitioned his sister. The sister is the beneficiary of the brother. If she has children, they are the derivative children.

    I confess that this portion of the law is really confusing specialy to non-lawyer. I have a legal backgraound and I can say with authority that the above interpretations is the only interpretation you can possibly think of.

    Probably, the INS guideline will resolve the confusion, but when? May be months or years,in the meantime, we have to assert our rights. We can be vigilant by bombarding the INS with letters to request them to promulgate the rules as early as possible, or, if I were you "Guest" I will write the INS informing them that according to majority comments and opinions, your nieces and nephews are covered by the law. If I were your relatives, I will initiate an application to seek an LPR (lawful permanent resident) status in compliance with the reglamentary period reguired by law. Good luck!

  8. #8
    Guest
    I have a story to tell. This is a true story. In 1980, I petitioned my sister. Her son was born in May 5, 1981. On
    April 17, 2002, She recieved a lot of paper works from the American consulate. I also recieved Affidavit of Support forms. In April 17, 2002, I guess that was the date the visa # became available, her son was 20 years old and 9 months. On August 5, 2002, after 3 months and 18 days of visa process, the visa was handed to her, minus her son's. She was told her son has age out.He was on Augsut 5, 2002 was 21 years, 2 months and 30 days old. This is the reason why I am trying to understand the cspa. I have read and read and read the law over and over again to determine whether or not my nephew is covered under this Act and it is my firmed belief that he is definitely so covered. He was below 21 at the time the visa number became available to his parent on 4-17-02. This time of visa availability is the determining factor and nothing else. If you are in the same situation, share this opinion with me because I believe, we are in the right direction.

  9. #9
    Guest
    Boni,
    The law definitely applies to your nephew since the visa number became available when he was still 21. The law states that his age is determined by the time when visa number becomes available, minus the pending time. Whatever the pending time means, he's safe ( "< 21" minus anything will still be "< 21"). It's the rest of us, who have aged-out before the visa number becomes available, that need to worry what the "pending period" means.

  10. #10
    Guest
    Sorry, I meant to say that the visa number became available while he was still "under" 21.

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