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
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?
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