Website Q & A - September 14, 2007

Counting Age Under The CSPA and Possible Option

Dear Mr. Lee,

I have an I-140 visa petition and an I-485 application that were filed under the third preference employment category in the recent one month period that Immigration gave for all employment cases to file for their green cards. I also filed I-485 applications for my wife and two sons. My priority date is April 15, 2004 under the China quota. I filed my I-140 petition on August 21, 2006, and it was approved on December 21, 2006. My oldest son was born on February 14, 1986.

1 Is there any argument that I can make even when as per the CSPA my son's age is 21 years and 14 days before the priority date became current or are we just at the mercy of the adjudicating officer to ignore the 14 days?

2 Is U.S.C.I.S. calculating age for the CSPA using the number of months or the exact number of days?

3 I have another I-140 visa petition which I filed under a national interest waiver (NIW)on April 22, 2005. That application was denied and is on appeal with U.S.C.I.S.'s appeals office at this time. Can my son gain any relief from this petition?

Dear reader:

1 Your calculations appear to be correct that your son is not eligible under current interpretations of the CSPA. His age could not be considered frozen for purposes of CSPA counting until July 1, 2007, when availability appeared on the visa bulletin. He is given credit for the period of time that the visa petition pended which in his case was 122 days. He needed 136, the period from his 21st birthday on February 14, 2007, until the priority date became current on July 1, 2007. There does not appear to be an argument to give him those required days and so he would be at the mercy of the U.S.C.I.S. and whether it chooses to look the other way to the 14 days.

2 U.S.C.I.S.'s calculation of age for the CSPA involves the exact number of days and not counting by months.

3 If you win your appeal and the current visa availability date for China remains past April 22, 2005, your son may be able to benefit under the CSPA as the U.S.C.I.S. counts the time that the case is pending on appeal as time that can be credited to a beneficiary. Upon approval, your son would be credited with all the time from your submission of the I-140 under the NIW filing (for the sake of other readers, an NIW filing does not require a labor certification but is a direct filing with U.S.C.I.S. on form I-140) to the date of approval.


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