Children Aging Out

[Auser123]

My daughter will age out May next year, I know we are all at the mercy of CO but do you think EB3 Oct 1'st 2009 has a chance of getting current by May next year?

[GC14Jan2010]

My daughter will age out May next year, I know we are all at the mercy of CO but do you think EB3 Oct 1'st 2009 has a chance of getting current by May next year?

I am in a similar situation. My son will age out in April 2021. Not sure if we can get Final Action Date to Jan 15th 2010 by Mar 2021. I do understand no one can tell us for sure. But can some one who understands the numbers well, please do an informed guestimate? Thanks

[Auser123]

are you Eb2 or Eb3? If EB2, did you not apply in 2012 when it was current?

[NJMavarick]

My daughter will age out May next year, I know we are all at the mercy of CO but do you think EB3 Oct 1'st 2009 has a chance of getting current by May next year?

Were you not able to file for EAD when filing dates were in 2010 and accepted for EB3I? I assume you are talking about EB3I.

That being said, I think either in July VB or Q1 next fiscal you should be good.

[NJMavarick]

I am in a similar situation. My son will age out in April 2021. Not sure if we can get Final Action Date to Jan 15th 2010 by Mar 2021. I do understand no one can tell us for sure. But can some one who understands the numbers well, please do an informed guestimate? Thanks

I think FAD would easily surpass Jan 2010 in Q1 next fiscal. You still have ~8.5K people waiting before Feb 2010 and with the FB spill over, dates should easily surpass Jan 2010.

P.S: This is if normal process is followed and spill over is applied. If a bill is passed in Congress that does not allow it then it is not going to be possible.

[Auser123]

Thankyou! If consulates open then there is 0 chance of Eb3I dates moving ahead.
Yes EB3I, We filed when filing dates were current and have EADs but one has to file with FAD dates for kids age to freeze.

[paramjit74]

Thankyou! If consulates open then there is 0 chance of Eb3I dates moving ahead.
Yes EB3I, We filed when filing dates were current and have EADs but one has to file with FAD dates for kids age to freeze.

I was told by my lawyer that kids age freeze when you file 485 irrespective of whether you file with DF or FAD. Do you have any link that says otherwise?

[qesehmk]

I am in a similar situation. My son will age out in April 2021. Not sure if we can get Final Action Date to Jan 15th 2010 by Mar 2021. I do understand no one can tell us for sure. But can some one who understands the numbers well, please do an informed guestimate? Thanks


My daughter will age out May next year, I know we are all at the mercy of CO but do you think EB3 Oct 1'st 2009 has a chance of getting current by May next year?

I generally refrain from predictions now a days. But given how dire your situation is I am going to hazard a guess and say yes to Auser. Don't hold me for this though.
I am just doing mental math here.

GC14Jan2010 - same is true with you but with lesser probability.

If you want more informed calculations based result - do this - https://www.qesehmk.org/forums/showthread.php/900-WhereismyGC-com-Related-Discussion-amp-Updates?p=64051&viewfull=1#post64051

[qesehmk]

I was told by my lawyer that kids age freeze when you file 485 irrespective of whether you file with DF or FAD. Do you have any link that says otherwise?
I think your lawyer is correct. If 485 is filed then I think kids are ok. But I am not sure about Counselor processing. I think for CP they will age out if they are under 21 by their CP interview.

[Auser123]

Thankyou Q. Gives me some hope. If CO wants he can move EB3I dates today but he is holding them for some reason

[GC14Jan2010]

Thank you NJMavarick and Q. Really appreciate the reply. We did apply for 485 during Jan this year and consequently my son does have EAD now. But as I understand - the CSPA through which a child's age freezes - will apply only based on Final Action Dates not Filing Dates.

[qesehmk]

Thankyou Q. Gives me some hope. If CO wants he can move EB3I dates today but he is holding them for some reason
Wish you well my friend. As per CO - don't blame him. The last time he moved dates to generate demand, USCIS overruled him. So no - he doesn't have the power anymore. DHS won in the showdown with DOS. (Don't remember exactly when -- perhaps 5 years back).

[qesehmk]

Thank you NJMavarick and Q. Really appreciate the reply. We did apply for 485 during Jan this year and consequently my son does have EAD now. But as I understand - the CSPA through which a child's age freezes - will apply only based on Final Action Dates not Filing Dates.

Sorry I stand corrected. According to CSPA it is not even FAD it is the date your GC is approved. So on the day your 485 is approved, your child must be 21 or less to receive the benefit of a dependent.

[Spectator]

USCIS (for once) has good information about the subject in their Policy Manual at https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7

Here's some excerpts that might clarify things:


4. Determining Age at Time of Visa Availability

In order to calculate an adjustment applicant’s CSPA age according to the formula above, the officer must first determine the age at time of visa availability.

In order for the immigrant visa to be considered available, two conditions must be met:

The petition must be approved; and

The visa must be available for the immigrant preference category and priority date.

Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates:

The date of petition approval; or​

The first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date in the Final Action Dates chart.



Visa Bulletin Final Action Dates Chart used for Child Status Protection Act Age Determination

While an adjustment applicant may choose to file an adjustment application based on the Dates for Filing chart, USCIS uses the Final Action Dates chart to determine the applicant’s age at the time of visa availability for CSPA age calculation purposes. Age at time of visa availability is the applicant’s age on the first day of the month of the DOS Visa Bulletin that indicates availability according to the Final Action Dates chart.

An applicant who chooses to file an adjustment application based on the Dates for Filing chart may ultimately be ineligible for CSPA if his or her calculated CSPA age is 21 or older at the time his or her visa becomes available according to the Final Action Dates chart.


Basically, the child's CSPA age must be below 21 when the Final Action Date first becomes current (unless the I-140 is not yet approved, when it becomes the date of that approval).

If that condition is met and an application is filed within 1 year, the child's CSPA age remains locked, regardless of how long the I-485 takes to be approved.

However, filing an I-485 based on the Filing Date Chart does not lock the CSPA age. That will only happen when the Final Action Date first becomes current.

[GC14Jan2010]

USCIS (for once) has good information about the subject in their Policy Manual at https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7

Here's some excerpts that might clarify things:



Basically, the child's CSPA age must be below 21 when the Final Action Date first becomes current (unless the I-140 is not yet approved, when it becomes the date of that approval).

If that condition is met and an application is filed within 1 year, the child's CSPA age remains locked, regardless of how long the I-485 takes to be approved.

However, filing an I-485 based on the Filing Date Chart does not lock the CSPA age. That will only happen when the Final Action Date first becomes current.

Thank you @Spectator. That was my understanding too. It is such a shameful process which makes the child start all over again at the back of the line, even if the date is missed by just a month's bulletin.

[paramjit74]

Thank you @Spectator. That was my understanding too. It is such a shameful process which makes the child start all over again at the back of the line, even if the date is missed by just a month's bulletin.

Thanks Spec for the info. I agree its too hard for the kids. Luckily my FAD is current June 1 and my daughter is 15.

[GC14Jan2010]

Thank you @Spectator. That was my understanding too. It is such a shameful process which makes the child start all over again at the back of the line, even if the date is missed by just a month's bulletin.

I am in a bit of a quandary again. We just gt our EAD renewals. My son's H4 is approved only until his 21'st birthday even though my H1 is valid for 3 years. But his EAD is renewed for the full 2 years ( full renewal term). So his EAD is valid for almost an year more than his H4 validity. I am not sure what his status is after he crosses his 21st birthday. Attorney advice is not to apply for F1 as that means we are abandoning his I-485 process. I am confused as to what are my options here. Anyone can throw some light? TIA

[qesehmk]

I am in a bit of a quandary again. We just gt our EAD renewals. My son's H4 is approved only until his 21'st birthday even though my H1 is valid for 3 years. But his EAD is renewed for the full 2 years ( full renewal term). So his EAD is valid for almost an year more than his H4 validity. I am not sure what his status is after he crosses his 21st birthday. Attorney advice is not to apply for F1 as that means we are abandoning his I-485 process. I am confused as to what are my options here. Anyone can throw some light? TIA
Unfortunately once he ages out his only option is to switch to F1 status. He can no longer use the EAD. So your best bet is to hope for the dates to be current and final before he turns 21. I am sorry for the harsh verdict ... perhaps others know better and I hope there some hope.

[GC14Jan2010]

Unfortunately once he ages out his only option is to switch to F1 status. He can no longer use the EAD. So your best bet is to hope for the dates to be current and final before he turns 21. I am sorry for the harsh verdict ... perhaps others know better and I hope there some hope.

Thanks for chiming in @Q. Just hoping for FAD to at least reach my PD once.

[qesehmk]

Thanks for chiming in @Q. Just hoping for FAD to at least reach my PD once.
Lets hope things will work out. All the best.

[bluelabel]

USCIS (for once) has good information about the subject in their Policy Manual at https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7

Here's some excerpts that might clarify things:



Basically, the child's CSPA age must be below 21 when the Final Action Date first becomes current (unless the I-140 is not yet approved, when it becomes the date of that approval).

If that condition is met and an application is filed within 1 year, the child's CSPA age remains locked, regardless of how long the I-485 takes to be approved.

However, filing an I-485 based on the Filing Date Chart does not lock the CSPA age. That will only happen when the Final Action Date first becomes current.

Hello Spec,

what if the I-485 is filed when dates for filing is current and later final action date becomes current once before the child turns 21. However final action dates later retrogressed until after child is over 21?

Is CSPA locked in this scenario?

[GC14Jan2010]

Hello Spec,

what if the I-485 is filed when dates for filing is current and later final action date becomes current once before the child turns 21. However final action dates later retrogressed until after child is over 21?

Is CSPA locked in this scenario?

Yes. Per my understanding and my inquiries so far. Moreover the use of CSPA would only be if it can be applied when PD becomes current in FAD and then retrogresses. If that is not applicable even then there is no purpose of CSPA for employment based immigrants.

[GCWait2011]

Hello Gurus,
Need some advice for my son immigration status. I will be applying for EB2-I485 as my priority date is April 2011, my child age is 18 years. There are chances he might age out.

I need advice on what will be the best option for my child,
1. Apply EB2-I485 for him along with my application.
2. My son has already received I-20 from college, but his H4 extension is pending from May2020. Can I apply F1 visa and then apply for EB2-I485.
3. Any other suggestions, please suggest.

[qesehmk]

Hello Gurus,
Need some advice for my son immigration status. I will be applying for EB2-I485 as my priority date is April 2011, my child age is 18 years. There are chances he might age out.

I need advice on what will be the best option for my child,
1. Apply EB2-I485 for him along with my application.
2. My son has already received I-20 from college, but his H4 extension is pending from May2020. Can I apply F1 visa and then apply for EB2-I485.
3. Any other suggestions, please suggest.

Welcome to the forum. IMHO you should apply for 485 for your child(ren) without thinking about it. His status will be dual AOS pending and H4 pending. I

You should consult a lawyer ... but my opinion is 485 is critical. F1 gives him no additional benefit other than OPT which he will get under 485 EAD.

[idliman]

Welcome to the forum. IMHO you should apply for 485 for your child(ren) without thinking about it. His status will be dual AOS pending and H4 pending. I

You should consult a lawyer ... but my opinion is 485 is critical. F1 gives him no additional benefit other than OPT which he will get under 485 EAD.
I concur. Please apply for EB2I I485 based on "DF" as soon as possible. There are proposed rules to remove the D/S (duration of status for F1 visa) and replace it with a fixed limit. I485 (c9) based EAD is more powerful and cannot be easily abolished by rule change of admins (it is based on a law).
There is a chance that your "FA" dates might become current. Did you also explore the possibility of down porting to EB3? Everyone had predicted "aggressive" movement. I pray for that happen so that kids don't have to go through the immigration mess.

[GCWait2011]

Thankyou qeshmk and idliman for your valuable advice. I spoke to my immigration team for down porting to EB3. I explained them in detailed steps that if they downport me in EB3, my son age will be extended by 8-10 months because of I140 processing time (as per CSPR). I will go ahead and file the EB2 I485 and EB3 I485 if my company agrees to downport based on my circumstances.

[jimmys]

Thankyou qeshmk and idliman for your valuable advice. I spoke to my immigration team for down porting to EB3. I explained them in detailed steps that if they downport me in EB3, my son age will be extended by 8-10 months because of I140 processing time (as per CSPR). I will go ahead and file the EB2 I485 and EB3 I485 if my company agrees to downport based on my circumstances.

Just get in the I-485 line. You can downgrade later after seeing the movement for 3-4 months.

[GCWait2011]

Just get in the I-485 line. You can downgrade later after seeing the movement for 3-4 months.

My company agreed to downport to EB3. Shall I proceed with EB3 OR proceed with EB2 and then later downgrade to EB3. WHich will be best option. I was thinking EB3 will be the best option as EB3-140 processing will take 6-8 months and that time will get added to my child age.

[RajPal]

Long time lurker and first time poster here! I wanted to start with my gratitude for the people in this forum, for providing this space to keep ourselves sane in this arduous immigration journey. I appreciate the knowledge of the gurus here and I have learned quite a bit about immigration reading some posts.

I come with a question for clarification regarding CSPA and would greatly appreciate your feedback. My husband's PD (July 30, 2012) became current in July 2021 visa bulletin. He downgraded from Eb2 to Eb3 in Oct 2020 and we filed AOS for both our children (ages 15 and 17 then). We waited for I-140 approval via regular processing, hoping to add days to CSPA if it came to that point and just this last month we applied for premium processing to lock our kids age when our PD became current and our PP was approved in mid June 2021. Our lawyer didn't agree with us to file the premium processing for I-140 and cited the CSPA age calculation formula as the reason, later agreed to file one.

Yesterday, I tried to clarify with our lawyer about CSPA and received this response, "Immigrants, especially from India, can still expect many months (or years) of wait-time before employment-based visa numbers become current. The longer the wait for a current priority date, the more risk of derivative children approaching an age-out scenario.

To determine a child?s CSPA-age, you subtract the number of days the I-140 was pending from the age of the child on the day the priority date becomes current in the Final Action chart (the ?visa availability date?). That is the calculation I noted below.

Since the new EB-3 downgrade petition was filed for you, your derivative children?s CSPA-age calculation will be based on how long the new EB-3 petition is pending with USCIS.

Essentially, the longer the new petition is pending, the greater the CSPA protection is for the derivative child. That is why I previously advised you to NOT file premium processing. Unfortunately, the inability to predict the wait time for permanent residence makes it difficult for us to advise with much certainty.

We cannot provide any further assessment of CSPA predictions at this time owing to the unknown processing times ? while USCIS posts processing times for employment-based cases at around 12-14 months, this is subject to change."

This response confused me as my understanding was if the EB3 I-140 is approved, the PD is current and an I-485 has been filed, then the age of children under 21 is frozen even if visa availability retrogresses. Am I correct? Also, can anyone please guide me if there is any legal process to apply for my kids at this stage?

Thanks in advance!