Ate’s expedite request dooms brother’s CSPA eligibility

Recently, an Ate (older sister) came to my office for a consultation, asking if her younger brother was eligible for age-out benefits under the Child Status Protection Act (CSPA). In that case, their immigrant parent had just filed a petition for her younger brother in the F-2A category (single minor child of immigrant parent). Right now, the waiting time for a green card in the F-2A category is about two years. However, her brother was turning 21 in a few months.

The sister decided to contact the USCIS and request that they expedite the approval of her brother’s petition. She called the 800 number, sent e-mails, and wrote letters. Finally the USCIS “granted” her expedite request, and immediately approved the petition. The problem is that by her rushing the USCIS to approve that petition, she effectively destroyed her younger brother’s chances for benefits under the CSPA.

The reason is that eligibility for benefits under the CSPA is based on a mathematical formula, whereby you take the date a petition is filed, and the date it was approved. How long did it take USCIS to approve the petition? Three months? Six months? One year?

Next, you sit around and wait for a few years, until the priority date is current (or visa is available). How old is the “child” when the priority date becomes current? You then subtract from the child’s age the length of time it took the USCIS to process and approve the petition. Therefore, the longer it takes USCIS to approve a petition, the more time you can subtract from the child’s age when the priority date becomes current. On the other hand, the faster the USCIS approves a petition, the less time you can subtract from the child’s age. For example, if it took USCIS three months to approve the petition, you can only subtract three months from the child’s age. If it took USCIS two years to approve the petition, you can subtract two years from the child’s age. Therefore it is always better, for CSPA purposes, for the USCIS to take longer to approve the petition.

In this particular case, the Ate was makulit, and requested USCIS to “expedite” the approval of the petition, which they did. However, as soon as the petition was approved, no more time could thereafter be subtracted from the child’s age. But the problem is that the waiting time for a visa in the F-2A category is about two years. Therefore, a person would want to have the petition be pending as long as possible. This is so that you can subtract more time from the child’s age when the priority date finally becomes current. But she did just the opposite, she rushed the approval of the petition.

My point is that the CSPA can sometimes be a confusing and complex law. What may seem to make sense (such as rushing the approval of a petition) can actually be harmful to a case. Before you start acting as your own attorney, giving yourself advice, and making up your own laws and rules, you should, instead, consult with an attorney to make sure you’re doing it correctly and are properly strategizing the case.

In this particular situation, by the Ate rushing the approval of the petition, her brother will not benefit from the CSPA.

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