By ATTY. CRISPIN CADAY LOZANO
The process for determining the age of the child beneficiary—either direct or derivative—of a Family-sponsored or employment-based visa petition or of a diversity visa application under the CSPA is more complicated. The statutory formula for these cases is that the child’s age will freeze as of the date that a visa number becomes available for the petition in question reduced by the number of days that the petition was pending, but only if the child seeks to acquire the status of an LPR within one year of the date the visa became available. This CSPA benefit also applies to self-petitioners and to derivatives of self-petitioners.
This formula can be broken down into three steps:
• First, determine the child’s age at the time a visa number becomes available;
• Second, subtract from this age the number of days that the visa petition was pending; and
• Third, determine whether the beneficiary sought LPR status within one year of the visa availability date (or if the one year is not yet over, ensure that the child beneficiary takes the necessary steps).
The first two steps will determine the child’s age. This age will only be frozen, however, if the third step is met. Each of these steps is discussed briefly below.
Note: When calculating the child’s age, remember that the USA PATRIOT Act provides extended “child” status to someone who turned 21 during or after September 2001, provided he or she is a beneficiary of a petition or application that was filed on or before September 11, 2001. Beneficiaries of petitions filed on or before this date that turned 21 during September 2001 are entitled to a 90-day extension of their child status. This means that these beneficiaries can subtract 90 days from their biological age before calculating their CSPA age. Beneficiaries of petitions filed on or before this date that turn 21 after September 2001 are entitled to a 45-day extension of their child status, which means they can subtract 45 days from their biological age.
a. How do I determine when a visa number has become available?
The first step is to determine the child’s age at the time that a visa number became available for the petition in question. Both USCIS and DOS state that a visa number becomes available on the first day of the month that the DOS Visa Bulletin says that the priority date has been reached. If the visa number is already available when the petition is approved, however, the agencies interpret the “visa availability” date for the CSPA as the date that the petition is approved. If a visa availability date retrogresses after the individual has filed an application for adjustment of status (Form I-485) based on an approved visa petition, USCIS states that it will retain the I- 485 and note on it the visa availability dates at the time that the I-485 was filed. When a visa number again becomes available; USCIS is to calculate the beneficiary’s age under the CSPA formula by using the earlier visa availability date marked on the I-485.
b. How do I determine how long a visa petition has been pending?
A child’s age will be determined by subtracting the number of days that the visa petition was pending from the child’s age at the time a visa number became available. Generally, a petition is pending between the date that the petition is properly filed (receipt date) and the date that an approval is issued. In family-sponsored cases, the receipt date is also the priority date. For employment-based cases, however, the date to be used in CSPA calculations is the date the I-140 visa petition is filed (the receipt date) and not the priority date.
c. How do I determine whether the beneficiary “sought to acquire” LPR status within one year of visa availability?
The child’s age—determined by the first two steps described above—will freeze only if the beneficiary has “sought to acquire” the status of an LPR within one year of the visa availability.
1. On February 3, 2016, we received an approval from USCIS of naturalization for client who has an approved waiver of misrepresentation.
2. On January 28, 2016, we received an approval from USCIS for an I-360 self petition for abused spouse of U.S. citizen.
3. On January 26, 2016, we received an approval from USCIS for an adjustment of status for client with big age difference with the U.S. citizen spouse based on good faith marriage.
4. On December 18, 2015, we received an approval of petition for adoption that was previously denied because client did the petition by themselves.
5. On December 11, 2015, we received an approval of DACA for a client who was in removal proceedings.
6. On December 4, 2015, we received an approval of adjustment of status for a client who has three different names.
7. On November 20, 2015, we received an approval of adjustment of status for a client who was suspected of marriage by convenience.
8. On November 4, 2015, we received an approval of immigrant visa at the U.S. Consulate for the daughter of a client who was approved under VAWA.
9. On November 3, 2015, we received an approval of immigrant visa at the U.S. Consulate in Manila for a client who entered the U.S. as a seaman.
10. On October 29, 2015, we received an approval of I-751 from the Immigration Court for a client who married a U.S. citizen but the I-751 was previously denied by USCIS.
11. On October 27, 2015, we received an approval of adjustment of status for same sex marriage spouse beneficiary.
12. On October 9, 2015, we received an approval of a waiver in Immigration Court for a client who entered as single but actually married.
13. On September 30, 2015, we received an approval from U.S. Consulate of an immigrant visa for a seaman based on approved I-601A waiver.
14. On August 27, 2015, we received an approval of naturalization for the recipient of waiver of misrepresentation we litigated in the Immigration Court.
15. We have more success stories at our website at www.crispinlozanolaw.com
Crispin Caday Lozano is an active member of the State Bar of California, the American Immigration Lawyers Association and the National Association of Consumers Bankruptcy Attorneys. He specializes in immigration law and bankruptcy law. (email@example.com/ 1-877-456-9266)