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  • Age Out Law

    Hi I am a Filipino, just turned 22 last July. I have a question on my parents status.
    My grandfather is a U.S. Citizen and He filed my dad, as family based immigration, 3rd Preference.
    It was filed 03/06/1990 and was approved 03/09/1990. I was only 10 years old then. But late this month we receive an information about signing into law, Child Status Protection Act. Will I be eligible here since my application was pending for 12 years (as derivative beneficiary.) ? If not I read in the law that we are can still avail it and our status will be converted to Family based 2B, but we will retain our priority date which is 1990, is that true? My dad is currently in U.S. and received a notice from NVC that they have a Visa number waiting for my family except me. please enlighten me for any possible remedy.

  • #2
    Hi I am a Filipino, just turned 22 last July. I have a question on my parents status.
    My grandfather is a U.S. Citizen and He filed my dad, as family based immigration, 3rd Preference.
    It was filed 03/06/1990 and was approved 03/09/1990. I was only 10 years old then. But late this month we receive an information about signing into law, Child Status Protection Act. Will I be eligible here since my application was pending for 12 years (as derivative beneficiary.) ? If not I read in the law that we are can still avail it and our status will be converted to Family based 2B, but we will retain our priority date which is 1990, is that true? My dad is currently in U.S. and received a notice from NVC that they have a Visa number waiting for my family except me. please enlighten me for any possible remedy.

    Comment


    • #3
      what exact date your dad recieve the notice and what is exactly your age at that time. very important to know because your qualification defend on this questions.

      Comment


      • #4
        Hello BC,
        Yes he received the notice last September 16, 2002. I already turned 22 last July. Will I be eligible? or if not will I retain my parents priority date??

        Thanks

        Comment


        • #5
          The action of NVC was based on the old law. Your name was deleted from the list of travelling companion the moment you turned 21. However, under the amended law, there is a feature of the law that when you apply, the result is that you will be considered below 21.That feature is the term "reduce by--(b) the number of days in the period during which the petition was pending". If my interpretation is right and will be supported by the INS GUIDELINES (not yet issued) you will be considered below 21 and you are within the scope of the new law. This is my interpretation:

          Your age (above 22) minus the number of days the petition was pending. Under this interpretation, a child will never age out.

          Besides being considered below 21, there is another thing I considered why I said you are included in the law and that is, you are not excluded by Sec. 8-EFFECTIVE DATE. Under this section of the law, if your father's visa petition was adjudicated before 8-6-02, you are alredy out. Since your father's visa petition is still under process, this new law apply to you.

          Another thing to remember in your case, the fact that you are not a travelling companion of your dad naturally you will not be issued a visa when he reeived his visa.

          There is another feature in the law that you can availed of, and that is, you have to apply to SEEK AN LPR (lawfull permanent residency) status within one year after the visa number of your dad became available. Wait for the INS guidelines, it will probably detailed the proceedures how to do it. If you failed to claim LPR status because your girl friend does not want you to go to America, you can avail of the RETENTION OF PRIORITY DATE. your father's petition is still good as far as your case is concerned because it will be converted to the appropriate category from 2a to 2b, and you will retain your priority date - 1990.

          I hope my interpretation is correct. I stand corrected if I am wrong. If there is another matter that I missed, let me posted.

          Comment


          • #6
            Hi BC,

            Yup! I think our interpretation is the same. However NVC's letter to my dad dated Sept.16, 2002, told him that I am not included. It seems that I have to wait for these implementing rules by the INS. So what will happen to my application ? Will the INS consider our petition based on EFFECTIVITY DATE of the law, or they will apply the old law ? It's a bit confusing and unfair for derivative children like us. We should have been benefited.

            Comment


            • #7
              When you turned 21 on July, NVC will delete you name from the list. It happened to my nephew. He was not issued a visa last 8-5-02, becuase his case falls under the old law. The new law was not retroactive to thier case because of the EFFECTIVITY DATE provision of this new law. My sister's visa application was adjudicate before the effectivity of the CSPA (Child Status Protection Act). Your case is different because the visa number of your dad became available after dthe CSPA, this law apply to those petition approved before the CSPA and the visa application was filed on or after the CSPA or was filed before the CSPA but was finally adjudicated after the CSPA passage on 8-6-02.You are covered under the new law -CSPA. KUMUSTA KA KABAYAN, nilipasan tuloy ako ng antok. Now is 4:a.m here, 9-24-02.

              Comment


              • #8
                Hi BC,

                Hello. So Filipino ka rin pala. Mabuti naman dito sa Pilipinas. Ikaw kamusta dyan ?

                That's nice. My dad filed his packet 3 with a notice of my case (that I am eligible because I age out). Will the NVC consider ? My dad told me this will insist that I am eligible, is that ok ? Or do I still need to wait for INS implemetation of the law ?

                Comment


                • #9
                  I think you are not eligible. Because your pending period is diff. between date when your petition is filed minus date when yoour petition is approved i.e. 03/06/1990 - 03/09/1990 = 3 days.

                  You can substratct this 3 days from the date on which your priority date became current.
                  After that your age will be more than 21 becose you have turned in 21 in this July.

                  You are not eligible under Retention of Priority date. Because it applies only to F2A category not for F3 category. You are just travelling accompaniant with your parent. You don't have your own petition.

                  I think i am right in my opinion. I have consulated some of the best lawyer in US about this law. You can know about this new law in following URL
                  www.shutman.com

                  AP

                  Comment


                  • #10
                    The INS interpretation says otherwise: it says that the petition pending days are between the day the petition is filed and the day the visa number becomes available.

                    Comment


                    • #11
                      I double-checked the INS website and the petition pending is actually from the date petition is filed to the date the petition is adjudicated (different from my previous post, but this is even better!) I don't think we should completely trust the lawyers now. Since the INS has not been given the official guidance, the lawyers only interpret the law in their own ways. I've heard different versions from different lawyers.



                      "This section provides relief from age-out by
                      establishing the alien's age as of the date a visa becomes
                      available for the alien (or the alien's parent), minus the
                      number of days that the petition was pending. Only those
                      aliens who seek to acquire the status of an alien lawfully
                      admitted for permanent residence within one year of visa
                      availability are eligible for relief under this section.
                      For this section, visa availability is defined to require
                      both a current priority date and an approved petition. The
                      number of days a petition has been pending is calculated
                      from the date the petition was filed to the date the
                      petition is adjudicated. "Seeks to acquire the status of
                      an LPR" will be defined to mean apply for an immigrant
                      visa, i.e., the date of visa application."

                      Comment


                      • #12
                        Retention of priority date applies to those under subsections (a)(4) and (d). Here subsection (d) refers to the derivative beneficiary (as in section 3).


                        "RETENTION OF PRIORITY DATE- If the age of an alien
                        is determined under paragraph (1) to be 21 years of age
                        or older for the purposes of subsections (a)(4) and (d),
                        the alien's petition shall automatically be converted to
                        the appropriate category and the alien shall retain the
                        original priority date issued upon receipt of the
                        original petition."

                        Comment


                        • #13
                          Jl:

                          Yup that's what I understood. I know that Since we are derivative beneficiary under F3, we are qualified. Do I need to wait for INS implemetation rules? or I can make action ? What action would that be ?

                          Comment


                          • #14
                            You can find more info. about CSPA from following URL.

                            http://immigration.about.com/library.../aa092002b.htm

                            After reading this chat transcript give your opinion. The lawyer who gave answer is one of the best immigration lawyer in US.

                            AP

                            Comment


                            • #15
                              AP,

                              I think we are not qualified for the determination of age since you said that from the time of filling to the time of approval is only 3 days. But another remedy would be Retention of Priority Date

                              "RETENTION OF PRIORITY DATE- If the age of an alien
                              is determined under paragraph (1) to be 21 years of age
                              or older for the purposes of subsections (a)(4) and (d),
                              the alien's petition shall automatically be converted to
                              the appropriate category and the alien shall retain the
                              original priority date issued upon receipt of the
                              original petition."

                              As it ses, that for the purposes of subsections A4 and d which applies for Derivative Beneficiary, like me. Priority Date applied for our parents will be used.
                              Since I am a derivative beneficiary I should be eligible to receive these benefits.
                              If my petition will be converted automatically it would be 2B.

                              Here are some scripts from a News Remember that Employment based and Family based Immigration are treated the same

                              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.

                              Comment

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