H1B Visa Lawyer Blog
The CSPA protects Derivative children of Employment-Based preference categories
As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.
Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).
For instance, if you are the beneficiary of an employment-based third preference I-140 petition, as a citizen of India, with a priority date of March 1, 2005, your child would automatically have the same priority date. At the time of filing, your child was 16 years old. Once again you would have to review the State Department’s monthly Visa Bulletin to determine whether or not your priority date is current. Currently, there is a backlog for the employment-based third preference category for citizens of India. Accordingly, applicants currently have a wait of approximately seven (7) years before a visa number will become available. The State Department is currently processing cases for applicants with a priority date of November 1, 2001. Therefore, by the time the visa number will be available, your child will be 23 years old. Then, you must subtract from that age, the result of a second formula.
The second formula requires you must determine the elapsed time between the date the petition was filed, and the date that the petition was approved.
Accordingly, the I-140 petition was filed on March 1, 2005, and then approved on March 27, 2006. The computation of those two dates would be a period of approximately 1 year. This only brings your child’s age down to 22. (23 years of age – 1year = 22) Therefore, your child has “aged-out” even with the help of the CSPA. Retrogression of employment-based visa numbers has severely limited the ability of the CSPA to help the derivative children of employment-based petitions.
If the facts were different, and your child did not “age-out”, he/she would still have to apply for permanent residence within one year of the priority date being current in order to be protected under the CSPA. Otherwise, the child would “age-out” and subsequently be denied.