Children Aging Out

[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!