Formulas for Calculating Age
- F1:the unmarried, adult (21 or over) sons and daughters of U.S. citizens;
- F2A:the spouses and unmarried, minor (under 21) children of LPRs;
- F2B:the unmarried, adult (21 or over) sons and daughters of LPRs;
- F3: the married sons and daughters of U. S. citizens;
- F4: the brothers and sisters of U. S. citizens. §§1151(a)(1) , 1153(a)(1) -(4)
Immediate Relatives: Filing of I-130 petition prior to age of 21 freezes age at the time of filing; if lawful permanent resident petitioner naturalizes before child turns 21, petition automatically converts to immediate relative category.
Asylees/Refugees: Filing of asylum or refugee application prior to the age of 21 freezes the child’s age at the time of filing.
Family-Based Preference Categories: The time that the visa petition is pending is subtracted from the child’s age at the time when the visa became available as long as the child sought to acquire permanent resident status within one year of filing.
Employment-Based Preference Category: The time that the visa petition is pending is subtracted from the child’s age at the time when the visa became available, as long as the child sought to acquire permanent resident status within one year of filing.
Nonimmigrants: CSPA does not apply.
Special Programs (HRIFA, Special Immigrant Juveniles, Family Unity, NACARA): CSPA does not apply.
Formula for Preference Categories (Family and Employment-Based)
1. Subtract the Amount of Time the Visa Petition Pending
2. From the Beneficiary’s Age When a Visa Number Become Available
3. As Long as the Child “Sought to Acquire” Within One Year of Visa Availability
1. Date when properly filed and received up until at least all periods of administrative review; practitioners should argue also that it includes that time petition is pending under federal court review should also be considered.
2. First day of the month when the State Department Visa Bulletin indicates that the priority date has been reached. Where the priority date retrogresses, the date when the I-485 was filed is considered the visa availability date. If the I-485 is not filed until after retrogression is over and a visa is available, the subsequent date should be used.
3. Interpreted narrowly. Generally it means when the adjustment of status application is properly filed and received by USCIS; for consular processing cases, the date when Form DS-230, Part I is submitted for the child; for following-to-join, when Form I-824 is submitted. May also consider limited other circumstances, such as when the application is rejected for a missing signature or the applicant signs and completes all paperwork, but the attorney fails to actually file.
When Is It Possible to Retain a Priority Date for an Aged-Out Derivative Beneficiary?
F2A Derivative Beneficiary Ages Out
The petition automatically converts to F2B, and no new petition is required; it retains its original priority date. Per Matter of Wang and USCIS policy memo.
F3, F4 Derivative Beneficiaries Age Out
The U.S. Supreme Court ruled on June 9, 2014 that the automatic conversion provision under the Child Status Protection Act (CSPA) does not benefit most derivative beneficiaries of family based preference petitions. Per Matter of Wang, a petition does not convert automatically, and the original priority date is lost. See Scialabba v. Cuellar de Osorio
Employment-Based Derivative Beneficiaries Age Out
Awaiting Supreme Court Guidance. No case law on this yet, but the Supreme Court’s decision should also cover derivative beneficiaries in employment-based cases.
- CA7, AROBELIDZE v. HOLDER: “Effective Date” Decision (7-27-11)
- CA7 finds retroactive application of “sought to acquire” of CSPA would be a manifest injustice: VELÁSQUEZ-GARCÍA v. Holder, Court of Appeals, 7th Circuit 2014
- Matter of Vasquez – Precedent BIA Decision re: “Sought to Acquire” (6-08-12)
- Matter of Zamora-Molina – Precedent BIA Decision re: Operation of the Opt-Out Provision (10-06-11)
- Matter of Azam – Non-Precedent BIA Decision re: Status of Children Who Aged-Out under CSPA (4-12-11)
- Matter of Murillo, Non-Precedent BIA Decision re: “Sought to Acquire” (10-06-10)
- Matter of Wang, 25 I&N Dec. 28 (BIA 2009) – Precedent Decision Regarding CSPA’s “Automatic Conversion” Clause (6-16-09)
- Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007) – Precedent Decision Addresses Effective Date of CSPA (2-09-07)
- Matter of Garcia – Non-Precedent BIA Decision re: Status of Children Who Aged-Out under CSPA (6-16-06)
- Matter of Ki Na Kim – Non-Precedent BIA Decision Interpreting “Final Determination” (6-07-06)
- Matter of Ji Young Kim – Non-Precedent BIA Decision Interpreting “Sought to Acquire” (12-20-04)
