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  • cspa

    Amit, you are pulling our legs.

  • #2
    Amit, you are pulling our legs.


    • #3

      in the above forum, somebody said that INS has already has guidelines for CSPA. but Do they work on Sundays, i mean the INS people?


      • #4
        I looked at the site and I noticed that most poster are not very knowledgeable ABOUT THE cspa except PRESIDENT.


        • #5

          You know that both of us are on the same wavelength regarding the CSPA. The Problem is that there are a lot of urban legends about CSPA as well as other immigration laws.

          These legends have mushroomed so much that even logical people get taken by them.

          Where ever possible, I have tried to steer people in the right direction. Unfortunately, some people continue to believe ridiculous interpretations because they are in denial.

          You cannot win them all!


          • #6
            I appreciate comments of boni and President about CSPA in general and and recent artcle written by the attorney Mr. P. J.Patel.
            Since I had some questions concerning the article I communicated with Mr.Patel who was gracious to respond. I sincerely thank him for his time. I would like to share his response with both of you and others with the hope that it would help everyone to understand better this complex law.
            Our communication was s follows:

            1. In answer1 of your first example you have indicated that.... visa becomes available for the married son i.e. Jan 2, 2005. On that day, doughter is 21 years and 1 day old. In previous paragraph before the example you have stated that locking of age occurs on '.....according to INS this is the first day of the month that priority becomes current. Doesn't this mean that daughter's age will be locked on January 1,05 and not on january 2,05?

            ANSWER: Because January 1 is a holiday, the law provides for the next available date, which is January 2. Thus, both legally and practically, it would not make any difference whether you calculate from January 1 or January 2.

            2. Just before retention of priority date discussion, you stated '..... under 3, oct.1.1990 is the date ....locked in.' Shouldn't this date be october 1,02?

            ANSWER: Yes, it is indeed a typo. It should be October 1, 2002. Congratulations. I commend you for your quick eye.

            3. under retention of priority dates, you interpreted that for children who are 21+ years , after all age reduction calculation, on a date when their parents visa becomes available, parent would have to file a new petition after arriving in the U. S.A. or becoming an LPR. For any such new petition, visa categories will be fixed (F2) at the time of filing. If your interpretation is true, how could any conversion as stipulated in the law take place? Rather couldn't it be original petition filed for their parent as primary beneficiary under F$ category which has to be converted either automatically or following a request to appropriate F2 category? Then apply original priority date?
            Your analysis evaluates dates which are in future but it is silent about currently pending or just becoming current F4 cases. In all these cases priority dates becoming current are that in 1990. If the derivative children are able to retain their dates as per the mechanism you believe may be followed, how would that work? since the current dates for F2 category is 1994? and more importantly what are you recommending for F4 derivative cases since august 6?
            Your comments will be greatly appreciated.

            ANSWER: Your question #3 is too cumbersome and confusing. In any case, it entails the procedural mechanism that one has to follow to take advantage of the retention of the priority date provision in CSPA. Obviously, a lawyer will have to work on it. I cannot write even a brief exegesis on it. As you can well imagine, lawyers make their living doing so.


            • #7
              Guest R

              I appreciate that you have taken the time in corresponding with Mr. Patel. Logic dictates that the 'RETENTION...' is the most important clause in the CSPA.

              I agree with Mr. Patel that we are really discussing the mechanism of how that section will work in practice. Boni has pointed out time and again the word "automatically" has been used in the law.

              For the sake of all the beneficiaries, I hope that "automatic" conversions take place by clear regulations from INS. This will be beneficial to the "consumer" and free up the lawyers for weighty
              cases in Immigration Law!


              • #8
                President, guest R et al...

                I agree with most of Mr. P. J. Patel's, excellent analysis of CSPA. ( new users see

                However his analysis of Retention of priority clause is disturbing because to me it seems to be somewhat misleading.

                For F4 derivative beneficiary's who have aged out, Mr Patel seems to suggest that after becoming a LPR, parents can later file for their children. Hopefully the children will be able to avail the benefits of the retention of priority clause.

                I disagree with this interpretation because if the parents do become LPR's the petition is "deemed to be adjudicated". The DOS interpretation is that CSPA benefits apply to petition that have NOT been adjudicated. If the derivatives have not received the benefit at the time of primary beneficiary adjudication then according to the DOS interpretation they are ineligible.

                What it seems to me, in plain language is that if a primary beneficiary rushes to get LPR. And then files a petition for the children in the hope the new petition will be able to use the retention of priority clause they may be chasing a mirage. I just don't see a new petition being given an earlier priority date.

                Since a derivative beneficiary has no direct petition in his/her name. I, just like boni am hoping that the key to this beast is in the interpretation of the word "automatic" conversion. If INS interpretation is expansive then F4 derivatives will be able to immigrate. Else they will have to take a number and get back in line !!!!!!



                • #9
                  I think that your interpretation is not correct. For all derivative children under F4, just to determine age at the time visa numbers become available, the very first requirement is to have an approved petition (adjudicated petition). May be you are confusing about visa number becoming available vs. approval of petition (or adjudication of petition). Because of this reason, Mr. Patel's analysis is still most likely scenario. We all know that some new guidelines anticipated from DOS will untangle this. Meantime, I have 2 questions:
                  1. How are Consulates around world handling such cases currently (since August 6,02)? Are they denying benefit of CSPA to every eligible beneficiary? If anybody reading this has any knowledge about it, he or she may share it.
                  2. How does so-called "automatic Conversion" make any sense? Because even you are able to convert from one category F4 to F2, You simply cannot have two different priority dates within the same category, one for all others and one for derivative children getting converted to f2 category. In other words if you are able to retain priority date, currently for 1990 applicants, all children above 21 years will also get immediate visas since currently they are processing 1994 visas for f2 category.
                  I would like to see what Boni or President is thinking about this


                  • #10
                    Guest R,

                    By adjudicated, i mean becoming an LPR by

                    a) AOS approval (INS )
                    b) DS 230 part 2 approval. (DOS)

                    I belive that an approved petition is not the same as adjudicated, because the final detemination has not been made.

                    Ofcourse the final determination (i.e the process of adjudication) cannot be made till the priority becomes current.


                    I have no answer to your first question

                    The second one, I will float a tentative explanation of how it *MAY* make sense.

                    Consider the spouse of the a LPR beneficiary. He/she just like the children has no petition filed in his/her name. But we can think of the spouse's petition getting converted to appropiate category i.e F2A. Since F4 is backlogged when the spouse's priority gets changed to F2A it immediately becomes current. From F2A quota one visa number is subtracted and the spouse get the follow on/join privilege. We can think of a something similar happening for the sons/daughters except the category would be F2B.

                    The above is a just my own way of thinking and if someone can point to facts that either reinforce or negate the argument it will be great !!!



                    • #11
                      It seems to me that there is a lot of confusion about adjudiction and final determination.

                      In a 1-130 petition, the appropriate word used is approval and not adjudication or final deternination. These two words are used appropriately in the visa application processing as far as immigration cases are concerned.

                      In law, it mean the same thing. It convey the same result.

                      As far as the term "ALIEN PETITION" IN sUBSECTION (3) of the CSPA is concerned, I still maintained that if refers to all the persons which are the subject mater of the petition. The PRIMARY and the SECONDARY beneifciaries were the aliens petitioned, hence, the term "alien's petition" in SS (3) further, to add more credence to my position, "automatic conversion" likewise in ss(3) only refers to secondary beneficiaries and and never to the Primary beneficiaries.

                      As I have said before, it is not the intention of congress to leave out the secondary beneficiaries in the 1-130 petition when they age out. This was the reason why the CHILD STATUS PROTECTION ACT WAS ENACTED. Under the old law, only the P.B. were protected, not the S.P. When they age out, they are out of the picture. Congress was aware of this dilemna but it did not move to correct the situation. Only after a strong pressure by powerful policatical and immigration group that congress made their move.

                      I hope I made my point.


                      • #12
                        I am still wating for President's comment on our recent discussions. Meantime I wuld like to thank Boni for points (s)he made. I wish rather than general discussions specific issues I raised would have been discussed. I also do not think easy_cspa's example about spouse has any relevance in cspa discussion, however rest of his comments are appriciated.


                        • #13
                          Guest R:

                          Sorry, this is a busy time of the year for me. Sometimes, I respond to the easy postings faster!

                          Let me address the points you have made.

                          1. Right now according to the DOS cable, all CSPA cases affected by Section 3 are to be referred back to Washington. I am assuming that DOS is trying to achieve consistency in their decision making. Otherwise, the immigration attorneys will have a field day with the exceptions.

                          I participate in a number of immigration forums on the internet. No one had posted about one successful adjudication of an aged out child. Logically speaking, that does not mean, it has not occurred.

                          "Amit" had claimed that adjudication, but did not post the details. It may be that the US Consulate in Bombay accepted his application and he was over optimistic of his chances. Boni has unsuccessfully tried to get him to post the details of his case.

                          The "automatic" conversion's mechanics are yet to be worked out. I agree that the F4 derivatives should get the visa immediately with the parents.

                          In practice, the NVC should be converting the aged out children to F2 with the grand fathered priority date ( there will be only 1 priority date with a peition ) and they should have the primary beneficiary parent sign some sort of form authorizing the conversion to F2 for the aged out derivatives.

                          Right now the NVC is dropping the aged out children.

                          If the INS & DOS ask the primary beneficiary to get the visa, come to US and file a petition with grand fathered priority date, that would be a travesty of justice. I do not believe that was the intent of the law.

                          For consistent implementation of the law, the NVC must be involved.They can take care of this conversion, while they are asking the beneficiary to fill the forms and submit the Evidence of Financial Support etc. I beleive that the all consulates are not equipped to handle the cases consistently. There are bound to be stupid mistakes. In that case, the people with the best legal representation will get in faster.

                          As I have stated earlier, we can discuss this till we are blue in our faces. The only opinion that counts are the regs from INS. I am hoping that the AILA and other public bodies will lobby correctly for simple implementation of the law. But that would mean less billable time for AILA membership!


                          • #14
                            Thank you for sharing your thoughts on the subject.I agree with you 100 % that all that really matters is new INS regs whenever that come out.Meantime we can only share and discuss whenever we see something new like Mr. Patel's article.A recent update by Atty Moorthy is also interesting.Thanks again to you and Boni for your contribution and I wish all participants and viewers happy holidays.


                            • #15
                              Sorry I meant President.


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