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Thread: CSPA: ALL RESOURCES CONSUMED!!! READ EVERYBODY!!!!

  1. #1
    Guest
    dear cspa fans,

    boni,meljay, et al, with regards to the INS memo, I have read it so many times and my interpretation matches with my lawyer as well.

    he ( gurfinkel law office ) said that the pending period for substraction should be between the date when the FormI-130 is filed until the day it was approved.

    the receipt date is the filing date which theoretically becomes your PRIORITY DATE minus the date the FORM I-130 was approved.

    so for example, the petition was filed january 5, 1988 it concurrently is your PRIORITY DATE, but it was approved let's say april 5, 1988, then the amount to be substracted from the derivative beneficiary's age is the:

    age when the visa number becomes available minus
    3 months ( january 5 to april 5 )

    my lawyer said that form 130 adjudication means the approval date of such petition.

    in my case, we have the same case as meljay..i am an F3 derivative beneficiary whose priority date is november 1,1988. i was 10 years old then.

    my grandmother USC filed F3 to my mom november 1, 1988. so it theoretically became our priority date since it was the receipt of the petition.

    on the other hand, form 130 or application for petition was approved november 13, 1988 which basically was just 2 weeks span of time.

    our visa became available this april, iam already 24 that time and so computing the pending days of just two weeks( november 1, 1988 to november 13, 1988) to be deducted with my age now, i still aged-out because it is not enough to bring my age below 21. so iam noy qualified, as what my lawyer said.

    however, he said the RETENTION OF PRIORITY DATE is not yet 100% sure because INS is yet to issue the guidelines and is not basically for derivative beneficiaries but for immediate relatives. it's still confusing. my lawyer said once my parents are interviewed here in local US embassy in the philippines, they have to tell the consul or the officer of my case whether i can retain the priority date of the original petition of which iam a derivative beneficiary.

    i hope INS will be able to issue a memo soon with regards to this RETENTION ISSUE and who will be able to avail of this.

    and yes friends, i have exhausted and consumed all resources that i have..ive totally reseached and called NVC in Us, INS in Us, local US embassy here in the philippines but none of them gave concise answers.

    last night, i called National Visa Center in Portsmouth, NH, USA and i asked the operator about this matter ( number is 0016033340700 ) and she said that it is the INS that can answer my question about this CSPA. and NVC has no ability to reinstate one's name to be included in the list because it is the INS's job.

    and so meljay, i don't think it is the NVC that you have to send that appeal but the INS.

    after calling the NVC, i called the INS in USA and you know what, the customer service personell is so strange and odd..i don't know because when i stated my case, he said that the Child Status Protection Act is only for IMMEDIATE RELATIVES and not for DERIVATIVE BENEFICIARIES. WHAT???!!!!!!! I'm shocked!! Don't they read the CSPA law or memorandum. It's pretty odd. I told them about the section 3 and the retention of priority date issue and they said CSPA is only for child who were petitioned directly by their parents and not as a derivative beneficiary.. GOD!!! aren;t they aware of the LAW? and so they just told me to contact INS office here in local US embassy in the philippines because they said it's their discretion...WHAT?!!!! pretty odd...

    but a day ago, i called INS office here in US embassy in manila, but they told me i should ask the INS in USA because they are the ones who know it. WHAT?!!!!!!!!! they are just passing the ball with each other!!!!! what an irresponsible way to dessiminate information..it's so frustrating.

    my uncle in USA days ago called INS too in USA AND AGAIN a customer service personnel said that CSPA is only for immediate relative petition and not for F3 or F4 derivative beneficiaries. OH MY GOD!!! i dunno how to react!

    am i entitled to the CSPA? i believe iam BUT INS customer service personnel in USA says otherwise..

    and so from what i read in the memo and my lawyer's advice, ive realized that the SUBSTRACTION of that pending period wouldn't
    benefit me since the pending period between the filing of my f3 petition and the date ot was approved was just two weeks, not enough to bring my age below 21 since i am 24 now that the visa number becomes available.

    given the condition i can avail of the CSPA, it's the RETENTION of the PRIORITY DATE that is the KEY FACTOR..my lawyer is not yet very sure of this since AS YOU CAN SEE in the memo, retention of the priority date wasn't mentioned..and if it is available to not just immediate relative but also to derivatives.

    with regards to your question boni of the example in INS memo ( PDF file ) i understood it..let me explain:

    the scenario is this, however that example is addressed specifically to a child of an LPR ( direct ) and not derivative.. ( so maybe this is what the iNS personnel applied his answer since nothing in the INS memo speaks of derivative as an exmaple.

    the form 130 was filed 1998 when the child was 20 so 1998 is the priority date but the form 130 wasn't approved yet. so no petition adjudication yet. it was only approved after four years- 2002 which made the child 24 already..and it was also after four years that 1998 became current as to the priority date..however, their petition wasn't approved yet.

    REMEMBER FILING DATE OF THE PETITION IS THE SAME AS YOUR PRIORITY DATE..and the APPROVAL OF THE PETITION is not necessarily YOUR PRIRITY DATE except of course if it was approved the same day..which i doubt..the fastest approval date i head was with MELJAY'S CASE..only 3 days..ours was 2 weeks...

    going back to the example, after four years and yet their petition was not approved yet but 1998 became current, and he's 24.. he can subtract that 4 years from his age when his visa became available which is 24 making it 20 and thus, making him eligible to avail of the CSPA and get the visa provided he apply within one year that such visa became available.

    however as the example narrates, if the petition was approved after 2 years meaning( petition filed 1998 and so counting 2 years, makes the date of approval-2000), then the pending period will be 2 years deducted from his age when the visa became available of which he is 24 already minus 2 which will make him 22 and thus, is over 21 and not enough to make him below 21 and qualified to avail of the CSPA.

    what the INS memo left unanswered with this example is, what's gonna happen if that's the case that he is still over 21 when the substraction was made?

    i believe, he will be converted to the f2b and retain his priority date of 1998...but in the example it doesn't say so..but considering the ENTIRE TEXT OF THE LAW and not just this memo i believe that's what's gonna happen..

    BUT AGAIN...The question is will this apply to DERIVATIVE BENEFICIARIES???

    because my lawyer said and the INS personnel, retaining the priority date of his ORIGINAL PETITION speaks of DIRECT PETITION...consider the words.."HIS ORIGINAL PETITION"...

    and so INS and my lawyer said, but my lawyer is not 100% sure since no guidelines yet, that as an f3 or f4 derivative beneficiary,we are not the one related to the original petitioner..we are not the children of the main petitioner and so that is where the question LIES....

    whether derivatives can avail of the RETENTION OF PRIORITY DATE of her parent's petition in which he is a derivative beneficiary and not directly petitioned by his/her parents.

    and so there are still questions left unanswered but the law is so silent as to the f3 and f4 derivative beneficiaries..

    MELJAY, i have the same case as yours f3 derivative beneficiary..

    but MELJAY, i have to say i am more frustrated because i actually have two petitions as a derivative beneficiary.

    an f4 ( filed by my USC uncle to my mother ) dated August 17,1982..i was 4 years old then and this is not current yet.. IMAGINE 2 DECADES!!!!!!!!

    an f3 ( filed by my grandmother to my mom ) dated november 1 ,1988. i was 10 years old then. and is now being processed. my mom and the family are just waiting for the interview and medical schedule since all the papers, fees, documents, affidavits have all been accomplished.

    but my name was deleted because i am already 24 now..

    until this CSPA came and is selling like hotcakes now..and made us HYPER and PRO-ACTIve..and hopeful...

    i have actually asked almost everybody..

    my lawyer is actually Atty. Michael Gurfinkel but the one ive talked to in his law office is atty. Calvin Kleiner.

    i guess filipinos know ATTY. MICHAEL GURFINKEL, right meljay and boni? he's the one responsible for helping ASIA's songbird REGINE VELASQUEZ to lift his lifetime ban in USA because of human smuggling.

    and so that is what my layer said, try the RETENTION OF THE PRIORITY DATE, but not 100% sure/guaranteed..but let's cross our finger..

    because MELJAY, if we will be able to retain our priority date me 1988 and you 1990 then definitely we can apply for visa ASAP because f2b being processed in the philippines now is 1994.

    and so, my lawyer also said that the easiest way which will only take months is to have an employer petitioned you under H1-B visa..

    iam actually a certified public accountant here and so, my lawyer said he can't see why i can't get an H1-B visa which will basically be swifter and faster than immigrant visa processing..or better yet, marry and find your true love whos a USC..( hehehehe :-0 )

    so thats all i have to share for now..but i hope everything will turn out great..

    so many people would like to go to US..well, it's understandable, in spite of the terrorism and safety hazards in USA, USA is still a prime mover in economic affluence..ecomomy in the philippines is really bad now boni!

    and the bottomline is, your family will all be there in USA but we will be left alone here if we can't avail of the CSPA just because of that decades of waiting...

    email me at : taniem@edsamail.com.ph

    meljay, we're both in the philippines so you could email me some developments if ever, with regards to your case.because we actually have the same scenario.

    hope for the best,
    antman23

  2. #2
    Guest
    dear cspa fans,

    boni,meljay, et al, with regards to the INS memo, I have read it so many times and my interpretation matches with my lawyer as well.

    he ( gurfinkel law office ) said that the pending period for substraction should be between the date when the FormI-130 is filed until the day it was approved.

    the receipt date is the filing date which theoretically becomes your PRIORITY DATE minus the date the FORM I-130 was approved.

    so for example, the petition was filed january 5, 1988 it concurrently is your PRIORITY DATE, but it was approved let's say april 5, 1988, then the amount to be substracted from the derivative beneficiary's age is the:

    age when the visa number becomes available minus
    3 months ( january 5 to april 5 )

    my lawyer said that form 130 adjudication means the approval date of such petition.

    in my case, we have the same case as meljay..i am an F3 derivative beneficiary whose priority date is november 1,1988. i was 10 years old then.

    my grandmother USC filed F3 to my mom november 1, 1988. so it theoretically became our priority date since it was the receipt of the petition.

    on the other hand, form 130 or application for petition was approved november 13, 1988 which basically was just 2 weeks span of time.

    our visa became available this april, iam already 24 that time and so computing the pending days of just two weeks( november 1, 1988 to november 13, 1988) to be deducted with my age now, i still aged-out because it is not enough to bring my age below 21. so iam noy qualified, as what my lawyer said.

    however, he said the RETENTION OF PRIORITY DATE is not yet 100% sure because INS is yet to issue the guidelines and is not basically for derivative beneficiaries but for immediate relatives. it's still confusing. my lawyer said once my parents are interviewed here in local US embassy in the philippines, they have to tell the consul or the officer of my case whether i can retain the priority date of the original petition of which iam a derivative beneficiary.

    i hope INS will be able to issue a memo soon with regards to this RETENTION ISSUE and who will be able to avail of this.

    and yes friends, i have exhausted and consumed all resources that i have..ive totally reseached and called NVC in Us, INS in Us, local US embassy here in the philippines but none of them gave concise answers.

    last night, i called National Visa Center in Portsmouth, NH, USA and i asked the operator about this matter ( number is 0016033340700 ) and she said that it is the INS that can answer my question about this CSPA. and NVC has no ability to reinstate one's name to be included in the list because it is the INS's job.

    and so meljay, i don't think it is the NVC that you have to send that appeal but the INS.

    after calling the NVC, i called the INS in USA and you know what, the customer service personell is so strange and odd..i don't know because when i stated my case, he said that the Child Status Protection Act is only for IMMEDIATE RELATIVES and not for DERIVATIVE BENEFICIARIES. WHAT???!!!!!!! I'm shocked!! Don't they read the CSPA law or memorandum. It's pretty odd. I told them about the section 3 and the retention of priority date issue and they said CSPA is only for child who were petitioned directly by their parents and not as a derivative beneficiary.. GOD!!! aren;t they aware of the LAW? and so they just told me to contact INS office here in local US embassy in the philippines because they said it's their discretion...WHAT?!!!! pretty odd...

    but a day ago, i called INS office here in US embassy in manila, but they told me i should ask the INS in USA because they are the ones who know it. WHAT?!!!!!!!!! they are just passing the ball with each other!!!!! what an irresponsible way to dessiminate information..it's so frustrating.

    my uncle in USA days ago called INS too in USA AND AGAIN a customer service personnel said that CSPA is only for immediate relative petition and not for F3 or F4 derivative beneficiaries. OH MY GOD!!! i dunno how to react!

    am i entitled to the CSPA? i believe iam BUT INS customer service personnel in USA says otherwise..

    and so from what i read in the memo and my lawyer's advice, ive realized that the SUBSTRACTION of that pending period wouldn't
    benefit me since the pending period between the filing of my f3 petition and the date ot was approved was just two weeks, not enough to bring my age below 21 since i am 24 now that the visa number becomes available.

    given the condition i can avail of the CSPA, it's the RETENTION of the PRIORITY DATE that is the KEY FACTOR..my lawyer is not yet very sure of this since AS YOU CAN SEE in the memo, retention of the priority date wasn't mentioned..and if it is available to not just immediate relative but also to derivatives.

    with regards to your question boni of the example in INS memo ( PDF file ) i understood it..let me explain:

    the scenario is this, however that example is addressed specifically to a child of an LPR ( direct ) and not derivative.. ( so maybe this is what the iNS personnel applied his answer since nothing in the INS memo speaks of derivative as an exmaple.

    the form 130 was filed 1998 when the child was 20 so 1998 is the priority date but the form 130 wasn't approved yet. so no petition adjudication yet. it was only approved after four years- 2002 which made the child 24 already..and it was also after four years that 1998 became current as to the priority date..however, their petition wasn't approved yet.

    REMEMBER FILING DATE OF THE PETITION IS THE SAME AS YOUR PRIORITY DATE..and the APPROVAL OF THE PETITION is not necessarily YOUR PRIRITY DATE except of course if it was approved the same day..which i doubt..the fastest approval date i head was with MELJAY'S CASE..only 3 days..ours was 2 weeks...

    going back to the example, after four years and yet their petition was not approved yet but 1998 became current, and he's 24.. he can subtract that 4 years from his age when his visa became available which is 24 making it 20 and thus, making him eligible to avail of the CSPA and get the visa provided he apply within one year that such visa became available.

    however as the example narrates, if the petition was approved after 2 years meaning( petition filed 1998 and so counting 2 years, makes the date of approval-2000), then the pending period will be 2 years deducted from his age when the visa became available of which he is 24 already minus 2 which will make him 22 and thus, is over 21 and not enough to make him below 21 and qualified to avail of the CSPA.

    what the INS memo left unanswered with this example is, what's gonna happen if that's the case that he is still over 21 when the substraction was made?

    i believe, he will be converted to the f2b and retain his priority date of 1998...but in the example it doesn't say so..but considering the ENTIRE TEXT OF THE LAW and not just this memo i believe that's what's gonna happen..

    BUT AGAIN...The question is will this apply to DERIVATIVE BENEFICIARIES???

    because my lawyer said and the INS personnel, retaining the priority date of his ORIGINAL PETITION speaks of DIRECT PETITION...consider the words.."HIS ORIGINAL PETITION"...

    and so INS and my lawyer said, but my lawyer is not 100% sure since no guidelines yet, that as an f3 or f4 derivative beneficiary,we are not the one related to the original petitioner..we are not the children of the main petitioner and so that is where the question LIES....

    whether derivatives can avail of the RETENTION OF PRIORITY DATE of her parent's petition in which he is a derivative beneficiary and not directly petitioned by his/her parents.

    and so there are still questions left unanswered but the law is so silent as to the f3 and f4 derivative beneficiaries..

    MELJAY, i have the same case as yours f3 derivative beneficiary..

    but MELJAY, i have to say i am more frustrated because i actually have two petitions as a derivative beneficiary.

    an f4 ( filed by my USC uncle to my mother ) dated August 17,1982..i was 4 years old then and this is not current yet.. IMAGINE 2 DECADES!!!!!!!!

    an f3 ( filed by my grandmother to my mom ) dated november 1 ,1988. i was 10 years old then. and is now being processed. my mom and the family are just waiting for the interview and medical schedule since all the papers, fees, documents, affidavits have all been accomplished.

    but my name was deleted because i am already 24 now..

    until this CSPA came and is selling like hotcakes now..and made us HYPER and PRO-ACTIve..and hopeful...

    i have actually asked almost everybody..

    my lawyer is actually Atty. Michael Gurfinkel but the one ive talked to in his law office is atty. Calvin Kleiner.

    i guess filipinos know ATTY. MICHAEL GURFINKEL, right meljay and boni? he's the one responsible for helping ASIA's songbird REGINE VELASQUEZ to lift his lifetime ban in USA because of human smuggling.

    and so that is what my layer said, try the RETENTION OF THE PRIORITY DATE, but not 100% sure/guaranteed..but let's cross our finger..

    because MELJAY, if we will be able to retain our priority date me 1988 and you 1990 then definitely we can apply for visa ASAP because f2b being processed in the philippines now is 1994.

    and so, my lawyer also said that the easiest way which will only take months is to have an employer petitioned you under H1-B visa..

    iam actually a certified public accountant here and so, my lawyer said he can't see why i can't get an H1-B visa which will basically be swifter and faster than immigrant visa processing..or better yet, marry and find your true love whos a USC..( hehehehe :-0 )

    so thats all i have to share for now..but i hope everything will turn out great..

    so many people would like to go to US..well, it's understandable, in spite of the terrorism and safety hazards in USA, USA is still a prime mover in economic affluence..ecomomy in the philippines is really bad now boni!

    and the bottomline is, your family will all be there in USA but we will be left alone here if we can't avail of the CSPA just because of that decades of waiting...

    email me at : taniem@edsamail.com.ph

    meljay, we're both in the philippines so you could email me some developments if ever, with regards to your case.because we actually have the same scenario.

    hope for the best,
    antman23

  3. #3
    Guest
    Friend, I made a mistake on the time of filling to approval. It was January 6,1990 to March 9,1990. But yeah I do hope this RETENTION OF PRIORITY DATE Benifits us.

  4. #4
    Guest
    Hi ...guys Antman23's is telling everything right. That is how the things r going to work. We have had talk with Cyrus Mehta and he also intepretted CSPA the same way as Antman23's Lawyer. But there is hope for some people who have their petition approved very late. Bad luck to Antman23 as his pending period turned out to be only 2 weeks. Hope u get H1B...goodluck. Bye
    amit

  5. #5
    Guest
    dear cspa fans,

    thanks amit! but before i go on with that H1-B visa, i am still hoping for the retention of the priority date as an option because like i said per my lawyer's advice, it still is a possible way..the INS has yet to issue its final memo or guidelines with this and so i do hope that retention of priority date will apply to derivative beneficiaries too...my lawyer actually is not closing the possibility of that retention of priority date available also for derivatives..

    AMIT, what does aty. cyrus mehta has to say about RETENTION OF PRIORITY DATE with regards to derivatives?

    and so we're waiting for this as an option pertaining to the CSPA benefits...

    if not, we can explore other possible means of immigration while waiting for the f2b visa to become current..if we will not be able to take the retention of priority date..then an F2b visa wait in the philippines will have to be 7 to 8 years..which will make me 30 or 31 by then..well, not yet too old..but it's kind of funny and frustrating it will take me 3 decades..30 years just to get a visa..an F4 since 1982, an F3 since 1988 and an F2b if i will not retain my priority date will take 8 years..eventually, making it 3 decades all in all..

    funy but from an f4, i jumped forward to f3, and soon, an f2b..gosh!! i almost climbed every family
    based petition category..

    hope for the best.
    antman23

  6. #6
    Guest
    Hi,
    How do I find out when my mother's petition was approved? We had only the receipt date, which is also the priority date, according to Antman. My mother said that we've never received further notice from the INS.. is the approval date stated somewhere on the acknowledgement the INS sent us? Thanks!

  7. #7
    Guest
    hi Antman23....Mr. Cyrus Mehta said that " Retention of Priority Date" does not work in my case ( my petition lie in F4 category ). That time we did not enquire much because after deducting the no. of days between filing and approval of our petition we were seeming to be eligible. But later when i checked the date when our case became current...it turned out to be 2 months more than what i was assuming. So i just missed it by some days. But though we did not asked in detail about "retention....." he said we dont benefit from it. So i'll also wait until this " Retention of..." stuff gets more clear.

    And Mr. guest the person who has filed the petition for your mother must have got a letter or something having approval date.

    Bye....
    amit

  8. #8
    Guest
    Friends we need to wait for INS guidelines regarding this Law. Some lawyers are using their own interpretation of the law. If you have the law read over and over so that you will understand more. Those enclosed in parenthesis (d) or (2)(A) etc. is your petition category.
    Derivative Benificiary like us is (d).

    Read this... I got it from a news bulletin. Remember that Employment and Family based Immigration is the same for the scope of this law.


    U.S. Visa News Headlines
    Age-Out Protections for I-140 Beneficiaries


    By Kim King Wednesday, August 14, 2002
    We reported this week on the enactment of House of Representatives bill H.R. 1209 known as the "Child Status Protection Act." This act offers protection against "aging out" for certain children of foreign nationals whose ability to adjust status depends on their being less than 21 years of age at the time the adjustment application is adjudicated (such as being eligible to be considered an "immediate relative child" in the family-based context or being able to be considered a "derivative beneficiary" in the employment-based context.) Since the new law has different applications in the family- based versus the employment-based arenas, we briefly wanted to address the eligibility requirements for children of I-140 beneficiaries independently. While it would be nice to say that this section will work for everyone who would otherwise "age-out," unfortunately this does not seem to be the case. The American Immigration Lawyers Association (AILA) has summarized the age-out protection for employment-based derivative beneficiaries as being of benefit to those whom: 1. Would be defined as under the age of 21 using the following equation: Age (at time visa number becomes available) MINUS number of days I-140 was PENDING. -AND- 2. Seek to adjust status within one year following a visa number becoming available. Recently, with visa numbers in the employment-based categories being so readily available, this would equate to saying that the alien merely must be less than 21 years old when the I-140 was filed. However, if/when priority dates retrogress and visa numbers are not so readily available, those having lengthy waits [for a visa number] may fall outside of the protection. The new law makes a provision for this type of unfortunate situation, however it may be of little consolation. Under Section 3 of the law, IF using the preceding calculation the alien is determined to be 21 years or older when the visa number becomes available and thus cannot benefit from his/her parent's I-485, his/her petition will be automatically converted to the appropriate family-based category (usually the 2B adult son or daughter of a permanent resident category) and the original priority date for his/her parent's I-140 will be that which is applied. In effect, this may not be the type of benefit that would be hoped for by these derivative beneficiaries. The remedy of a new pending I-130 does not confer or preserve lawful status in the U.S. and, like the previously filed I-140, is an expression of immigrant intent. This expression of intent can impair the young adult's ability to maintain temporary status in the U.S. in certain non-immigrant classifications that require "non-immigrant intent" such as the F-1 student classification.

  9. #9
    Guest
    dear meljay,

    thanks for the input you posted.

    however,i am still confused. what's the gist of the posting u made?

    does it mean as a derivative beneficiary we have still hope to avail of the RETENTION OF PRIORITY DATE or no hope anymore?

    antman23

  10. #10
    Guest
    The Memo speak of PRIORITY DATE BECAME CURRENT. It is not just PRIORITY DATE. It means when it becomes reachable or visa number became available.

    tHE memo says "WE WILL NOT LOOK AT THE FORM 1-130 RECIEPT DATE TO DETERMINE WHETHER AN INDIVIDUAL OVER 21 CAN CONTINUE TO BE CLASSIFIED AS A CHILD FOR IMMIGRATION PURPOSES---

    BUT RATHER THE BENEFICIARY'S AGE WILL BE LOCKED IN ON THE DATE THAT THE PRIORITY DATE OF THE FORM-2-130 BECOMES CURRENT.

    I think you to clarify this thing to your lawyer.

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