Advocating for Aging Out EB Kids

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Originally Posted by idliman

Ace, after being at this "Trishanku Swarga" status (EAD/AP), I am starting to get tired of this process. I agree with most of your views above. In my opinion the single thing that messed up EB2I folks is the introduction of the Dual VB dates (DF/FA) by the Obama admin. I was cheering for it when it was announced and many years older, now I look back and reflect the harm it has done. In simpler words it made sure that spillover was systematically denied to India folks. Kids age-out is a greater sin than DACA. I am sure the JB admin will change the rule-book to include the DF dates. Immigration is very complicated. After being in the queue for so long, I realize that small things can have unintended consequences. The consulate closure unexpectedly now allowed many folks till 2015 to attain the EAD/AP status. I supported JB mainly for the reason that his admin will issue as many GCs as possible without the wastage that you expect from DT admin. Time only will tell if we were right to support our candidates. Even though EAD/AP Trishanku status is fine for a while, after 8+ years many will start getting tired of it.

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Have you maintained H1-B for the last 8 years?

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Originally Posted by idliman

USCIS has been turned into an enforcement agency instead of a service agency. The processes have been designed to slow down the approval process in conformance with the objectives of the DT administration. After Jan 20, DHS will be run by a Cuban immigrant who was heading the USCIS when DACA was formulated. I am sure they will have the means and staff to undo the road blocks crafted by the DT admin. Everything from Supp-J, interview mandate, expiry of medicals, public charge, etc., is designed to slow down the process. I am especially mad at how the Supp-J was designed to force people to go back the the company attorneys. Previously I-485 was an individual petition.

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For a politician if it serves his/her purpose it is "Operation Warp Speed" else its "Operation Road Blocks" .Legal Immigration is sadly the latter.

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Originally Posted by idliman

Ace, after being at this "Trishanku Swarga" status (EAD/AP), I am starting to get tired of this process. I agree with most of your views above. In my opinion the single thing that messed up EB2I folks is the introduction of the Dual VB dates (DF/FA) by the Obama admin. I was cheering for it when it was announced and many years older, now I look back and reflect the harm it has done. In simpler words it made sure that spillover was systematically denied to India folks. Kids age-out is a greater sin than DACA. I am sure the JB admin will change the rule-book to include the DF dates. Immigration is very complicated. After being in the queue for so long, I realize that small things can have unintended consequences. The consulate closure unexpectedly now allowed many folks till 2015 to attain the EAD/AP status. I supported JB mainly for the reason that his admin will issue as many GCs as possible without the wastage that you expect from DT admin. Time only will tell if we were right to support our candidates. Even though EAD/AP Trishanku status is fine for a while, after 8+ years many will start getting tired of it.

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Our PD is exactly 15 months apart. The process you getting tired is I presume the wait time in 485 as your time with 140 would have been under 2 years. In my case it solid 9 years of wait time 140 before I am eligible to apply for 485.

A lot of people will take 8+ years of EAD over 9 years of 140. Your kid would not have been aged out then unlike now.

And yes my kid is not protected from aging out even if he gets the EAD now.

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Originally Posted by idliman

Ace, after being at this "Trishanku Swarga" status (EAD/AP), I am starting to get tired of this process. I agree with most of your views above. In my opinion the single thing that messed up EB2I folks is the introduction of the Dual VB dates (DF/FA) by the Obama admin. I was cheering for it when it was announced and many years older, now I look back and reflect the harm it has done. In simpler words it made sure that spillover was systematically denied to India folks. Kids age-out is a greater sin than DACA. I am sure the JB admin will change the rule-book to include the DF dates. Immigration is very complicated. After being in the queue for so long, I realize that small things can have unintended consequences. The consulate closure unexpectedly now allowed many folks till 2015 to attain the EAD/AP status. I supported JB mainly for the reason that his admin will issue as many GCs as possible without the wastage that you expect from DT admin. Time only will tell if we were right to support our candidates. Even though EAD/AP Trishanku status is fine for a while, after 8+ years many will start getting tired of it.

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I hear your frustration and believe me I understand that. I actually see this frustration among a lot of old timers (who applied EAD in 2012). Your best case scenario was to get a GC. I do not want to speak for others, But my best case scenario was to get 485-EAD, work till I retire and move to India. Frankly, I had given up on GC a few years ago. So in a sense I am upbeat because my best case scenario has already materialized with me finally being able to file for 485 last month, while you are frustrated as your best case is yet to materialize. Maybe I will see your side if FAD ever reaches close to my PD. For now the GC dream is non existent for me and a lot of folks in my boat.

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Originally Posted by vsivarama

I hear your frustration and believe me I understand that. I actually see this frustration among a lot of old timers (who applied EAD in 2012). Your best case scenario was to get a GC. I do not want to speak for others, But my best case scenario was to get 485-EAD, work till I retire and move to India. Frankly, I had given up on GC a few years ago. So in a sense I am upbeat because my best case scenario has already materialized with me finally being able to file for 485 last month, while you are frustrated as your best case is yet to materialize. Maybe I will see your side if FAD ever reaches close to my PD. For now the GC dream is non existent for me and a lot of folks in my boat.

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If there were no separate filing dates, then DOS would have been forced to move the Final Action dates forward in order to generate demand. And as a result of that, USCIS would have been forced to issue more and more GCs because more and more FA dates would have become current. That scenario would have helped both you and idliman.

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Originally Posted by vedu

If there were no separate filing dates, then DOS would have been forced to move the Final Action dates forward in order to generate demand. And as a result of that, USCIS would have been forced to issue more and more GCs because more and more FA dates would have become current. That scenario would have helped both you and idliman.

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The filing dates chart was one of the dumbest proposal put forward by the obama admin. It was initially sold as if eventually everyone in the waiting queue would be able to apply for 485-EAD. At least those were some of the rumors flying around. Instead they found a way to make a lousy process even more lousier. Their argument is that they do not want cases to retrogress for FAD. It didn't help the immigrants (with aging out kids etc.) and highly unlikely that it helped USCIS in becoming any more efficient. It was a nonsensical solution to a problem that did not exist.

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Originally Posted by vsivarama

The filing dates chart was one of the dumbest proposal put forward by the obama admin. It was initially sold as if eventually everyone in the waiting queue would be able to apply for 485-EAD. At least those were some of the rumors flying around. Instead they found a way to make a lousy process even more lousier. Their argument is that they do not want cases to retrogress for FAD. It didn't help the immigrants (with aging out kids etc.) and highly unlikely that it helped USCIS in becoming any more efficient. It was a nonsensical solution to a problem that did not exist.

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I have seen this logic on the forum a couple of times now and I think it is flawed for two reasons.

1) FAD/FD is not as bad a thing as you think it is. It actually gives YOU as applicant exact ability to know which dates are being processed for GC vs which dates are only moved forward to generate demand. In the earlier scenario you would think "Oh gosh I am current and will receive GC in a few months" only to retrogress for next eight years. The FAD/FD dual date situation actually helps YOU i.e. backlogged candidate.
2) Obama I bet has no clue about the distinction between these dates, and I will be surprised if his DHS or DOS secretary could tell the difference. This is such a procedural thing, I bet it is the brainchild of some officer not even part of SES (senior executive service).

DOS / USCIS and Obama and any other president all deserve criticism for EB mess. But if the criticism is not well placed, it doesn't help YOU further YOUR OWN interests.

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Originally Posted by qesehmk

I have seen this logic on the forum a couple of times now and I think it is flawed for two reasons.

1) FAD/FD is not as bad a thing as you think it is. It actually gives YOU as applicant exact ability to know which dates are being processed for GC vs which dates are only moved forward to generate demand. In the earlier scenario you would think "Oh gosh I am current and will receive GC in a few months" only to retrogress for next eight years. The FAD/FD dual date situation actually helps YOU i.e. backlogged candidate.

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I think the downsides of this point far outweigh the benefits. Once the dates retrogress, the immigrants get the picture that they are not getting the GC anytime soon. Yes, they may not have a good enough estimate as to when they will be current again, but based on a single chart, chances were high that people would be able to file 485 earlier due to constant movements to generate demand vs pulling them back. Future demand generation for 2-3 years at a time was shelved when filing charts came into being. Now they just move enough to gauge demand for next fiscal year. The immigrants ended up on the losing end of this especially the ones with aging out kids. Their kid's age would have been frozen if the FAD was made current to generate demand. Once frozen it does not matter when those people get GC. But now the kids get aged out as there is no such provision for FD. It really does not matter who came up with the idea. The buck stops at senior levels of the agencies.

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Originally Posted by vsivarama

I think the downsides of this point far outweigh the benefits. Once the dates retrogress, the immigrants get the picture that they are not getting the GC anytime soon. Yes, they may not have a good enough estimate as to when they will be current again, but based on a single chart, chances were high that people would be able to file 485 earlier due to constant movements to generate demand vs pulling them back. Future demand generation for 2-3 years at a time was shelved when filing charts came into being. Now they just move enough to gauge demand for next fiscal year. The immigrants ended up on the losing end of this especially the ones with aging out kids. Their kid's age would have been frozen if the FAD was made current to generate demand. Once frozen it does not matter when the people get GC. But now the kids get aged out as there is no such provision for FD. It really does not matter who came up with the idea. They buck stops at senior levels of the agencies.

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Perhaps think this way and you might see why this is better this way.

The old dates are same as FD today. The only thing that has changed is introduction of FAD.

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Originally Posted by qesehmk

Perhaps think this way and you might see why this is better this way.

The old dates are same as FD today. The only thing that has changed is introduction of FAD.

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It would have been easy to think that way had the aging out of kids taken into account. Unfortunately it is still Final action date.

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Originally Posted by qesehmk

Perhaps think this way and you might see why this is better this way.

The old dates are same as FD today. The only thing that has changed is introduction of FAD.

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That still does not address the aging out problem. We need to engage actively with the new admin to get this issue addressed right away. Have come across quite a few people like that and it's painful to listen to their stories. If I am not mistaken, this can be addressed fairly quickly via an EO.

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Originally Posted by AceMan

It would have been easy to think that way had the aging out of kids taken into account. Unfortunately it is still Final action date.

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Originally Posted by vsivarama

That still does not address the aging out problem. We need to engage actively with the new admin to get this issue addressed right away. Have come across quite a few people like that and it's painful to listen to their stories. If I am not mistaken, this can be addressed fairly quickly via an EO.

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I am not aware of this issue. I assume what you are saying is that in the new system ... simply filing 485 does not lock kids age from aging out. Is that correct? Whereas in the old system it used to be. Is that what you are saying?

This indeed is a very serious issue for thousands of folks.

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Originally Posted by qesehmk

I am not aware of this issue. I assume what you are saying is that in the new system ... simply filing 485 does not lock kids age from aging out. Is that correct? Whereas in the old system it used to be. Is that what you are saying?

This indeed is a very serious issue for thousands of folks.

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Yes, it is.

Here is the exerpt from USCIS Policy Manual.

"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."

https://www.uscis.gov/policy-manual/...rt-a-chapter-7

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Originally Posted by qesehmk

I am not aware of this issue. I assume what you are saying is that in the new system ... simply filing 485 does not lock kids age from aging out. Is that correct? Whereas in the old system it used to be. Is that what you are saying?

This indeed is a very serious issue for thousands of folks.

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Yes that's correct. Filing I-485 using FD does not protect kids aging out, only FAD does that. This was a simple thing that they could have included while creating the whole FD concept but neglected to or did not want to for some reason.

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Originally Posted by Turbulent_Dragonfly

Yes that's correct. Filing I-485 using FD does not protect kids aging out, only FAD does that. This was a simple thing that they could have included while creating the whole FD concept but neglected to or did not want to for some reason.

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While I find kid's age not being locked by Date of Filing as a a serious fallout of the policy crafted during Obama's admin while decoupling FD/FAD dates back in 2015, it may just be an oversight, since the underlying intent was to allow additional folks to apply for EADs while their AOS status is pending and also to give them a sense of when their dates may become current. Put it simply, while it benefited the folks in one way, it also didn't do enough to get them current swiftly enough to address the kids aging out issue.

This very well could've been rectified by the current admin over the past 3-4 years, but they chose not to, and also chose to simply waste 10s of thousands of GCs each year.

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Originally Posted by qesehmk

I am not aware of this issue. I assume what you are saying is that in the new system ... simply filing 485 does not lock kids age from aging out. Is that correct? Whereas in the old system it used to be. Is that what you are saying?

This indeed is a very serious issue for thousands of folks.

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Exactly, why do you think I am actively advocating against people who already have an EAD from 2012 downgrading and interfiling in Eb3?

Those people are just using up a sparse resource which might help many kids aging out.

Kids with EAD from 2012 are protected as it was only single date back then.

So I read through DOS/USCIS documentation on their interpretation of CSPA in light of FAD and FD.

I find their whole application of 485 pending since visa availability an absolute load of crap explanation. That is very creative and designed to exclude children of backlogged people.

I suggest people whose children are impacted or will be impacted to form a sub group on this forum, raise money, find a lawyer and see if the new interpretation is consistent with the original 2002 law. I suspect that it is NOT.

And once you establish that, you should do 2 things.
1. Front 1 - go to courts to strike down the new interpretation.
2. Front 2 - Put pressure on biden to issue an EO granting immediate relief to these children exactly on the same line as DACA (i.e. US is the only country these kids have known. It would be cruel to force them to go back to other countries).

If there is anything I can do to help I will be happy to.

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Originally Posted by qesehmk

So I read through DOS/USCIS documentation on their interpretation of CSPA in light of FAD and FD.

I find their whole application of 485 pending since visa availability an absolute load of crap explanation. That is very creative and designed to exclude children of backlogged people.

I suggest people whose children are impacted or will be impacted to form a sub group on this forum, raise money, find a lawyer and see if the new interpretation is consistent with the original 2002 law. I suspect that it is NOT.

And once you establish that, you should do 2 things.
1. Front 1 - go to courts to strike down the new interpretation.
2. Front 2 - Put pressure on biden to issue an EO granting immediate relief to these children exactly on the same line as DACA (i.e. US is the only country these kids have known. It would be cruel to force them to go back to other countries).

If there is anything I can do to help I will be happy to.

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You see all these people jumping up and down right now like Siskind, Leon Fresco and Aaron Reichlin-Melnick, you know what they are all talking about? How to somehow get TPS for DACA folks on the sly. That's all they care about. No one, literally no one cares about EB backlogs or relief for their children. We are on our own and at the mercy of the whims of those in power and influence.

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Originally Posted by Turbulent_Dragonfly

You see all these people jumping up and down right now like Siskind, Leon Fresco and Aaron Reichlin-Melnick, you know what they are all talking about? How to somehow get TPS for DACA folks on the sly. That's all they care about. No one, literally no one cares about EB backlogs or relief for their children. We are on our own and at the mercy of the whims of those in power and influence.

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Others standing up for you is a privilege. Not a right. Isn't it?
It is important that one must stand up for oneself without waiting for or relying on others to do so.

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Originally Posted by qesehmk

Others standing up for you is a privilege. Not a right. Isn't it?
It is important that one must stand up for oneself without waiting for or relying on others to do so.

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Yes standing up for ourselves is an admirable intention. But everyone knows that this country has been bought and sold by big money interests, corporate greed and lobbyists (legal bribery). We are not a big enough vote bank to effect change in my opinion. It will take at least another couple of generations.

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Originally Posted by qesehmk

So I read through DOS/USCIS documentation on their interpretation of CSPA in light of FAD and FD.

I find their whole application of 485 pending since visa availability an absolute load of crap explanation. That is very creative and designed to exclude children of backlogged people.

I suggest people whose children are impacted or will be impacted to form a sub group on this forum, raise money, find a lawyer and see if the new interpretation is consistent with the original 2002 law. I suspect that it is NOT.

And once you establish that, you should do 2 things.
1. Front 1 - go to courts to strike down the new interpretation.
2. Front 2 - Put pressure on biden to issue an EO granting immediate relief to these children exactly on the same line as DACA (i.e. US is the only country these kids have known. It would be cruel to force them to go back to other countries).

If there is anything I can do to help I will be happy to.

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Thanks Q for your review and offer of support for the cause. We also need to learn from the past IV experience, when an organization started with a noble cause and as time passed, it transformed into a different organization under the same leadership which started abusing a sitting senator in unacceptable ways.

Also the time frame involved and the potential If USCIS presents evidence it require rule making, citing some obscure rules from manifest.

These are just random thoughts which came to my mind. Count me in to form a sub group to go forward with this.

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Originally Posted by AceMan

Thanks Q for your review and offer of support for the cause. We also need to learn from the past IV experience, when an organization started with a noble cause and as time passed, it transformed into a different organization under the same leadership which started abusing a sitting senator in unacceptable ways.

Also the time frame involved and the potential If USCIS presents evidence it require rule making, citing some obscure rules from manifest.

These are just random thoughts which came to my mind. Count me in to form a sub group to go forward with this.

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I think people who are most affected should show the drive. If there is none -- the same story will go on - rinse and repeat.

I am very confident that with Biden - we not only have a strong chance for country cap removal but also for overall lifting of immigration limits. The 140K is utterly ridiculous limit. So strong chance this admin will do something.

But it's the squeaky wheel that gets the grease. If affected people rise up and demand action - there is a good chance they will win.

If anybody wants to do something - it is critical to work in an open transparent way, take issues head on, and work in a bipartisan way to achieve your goals.

There are some noteworthy changes proposed in ABILs wish list of business immigration overhaul. They think not counting of derivatives can be done unilaterally without Congressional intervention by a new interpretation by the incoming Admin.

http://www.abil.com/news_items/ABIL%...0-%20FINAL.pdf

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Originally Posted by qesehmk

I think people who are most affected should show the drive. If there is none -- the same story will go on - rinse and repeat.

I am very confident that with Biden - we not only have a strong chance for country cap removal but also for overall lifting of immigration limits. The 140K is utterly ridiculous limit. So strong chance this admin will do something.

But it's the squeaky wheel that gets the grease. If affected people rise up and demand action - there is a good chance they will win.

If anybody wants to do something - it is critical to work in an open transparent way, take issues head on, and work in a bipartisan way to achieve your goals.

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Yes, I concur to that. Ideally people with PD beyond 2012-13 should lead this drive.

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Originally Posted by Turbulent_Dragonfly

There are some noteworthy changes proposed in ABILs wish list of business immigration overhaul. They think not counting of derivatives can be done unilaterally without Congressional intervention by a new interpretation by the incoming Admin.

http://www.abil.com/news_items/ABIL%...0-%20FINAL.pdf

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Turbulent - excellent. Under current laws EB dependents can easily be counted towards FB quota. But USCIS /DOS hasn't been doing that. So a biden admin can certainly look into it. Even the 7% cross category interpretation of country limits is creative anti-India interpretation by USCIS/DOS. I hate them for that.

See again .... I will suggest to backlogged folks - at least start building a list of such demands for reforms which can be fed to those who are doing advocacy. Of the top of my head here is my wish list.

1. Remove country caps
2. Double the EB limit and index it to the population growth
3. Count EB dependents as immediate relatives or FB.
4. Grant immediate relief to EB kids that are aging out
5. Turn H1 renewals into a soft green card where the H1 is NOT company specific.