F3 Aging Out Concerns

[alvinokafor]

I need some help determining if I would be eligible as a beneficiary of the F3 visa filed by my grandmother for my mum. Apologies in advance for the lengthy post.

Some information about my case:

Date of Birth: 21st April 1999

Priority Date: 28th May 2008

Approval Date: 12 August 2008

Date PD became current on Final Action Date Chart: 1st August 2020

DQ: 24th July 2021

I have some concerns about the CSPA age lock in that seems to protect children from aging out. The F3 visa which I am a beneficiary of was filed for my mum by her own mother back in 2008, and we started the visa processing in 2020. The visa covered my mum, dad, sister and I. But when we started the visa processing in 2020, my sister was already way over 21 and her name wasn't included in the NVC portal, at that point I was around 20 years old and some months. After my 21st birthday on April 2020, my name was removed from the NVC portal, and my uncle that stays in the US has to contact a lawyer and I think they requested that my name be added back to the portal, which NVC did, around 6 months after they took it out.

Now I suspect that the lawyers made a mistake in calculating my CSPA age in the petition they filed to the NVC, because I was able to get a hold of the enquiry that they submitted to the NVC, and I saw that they used January 2020 as the date the visa became available, the problem is that January 2020 is the date my priority date became current on the "Date For Filing Chart" which from my understanding isn't used to determine visa availability or age at time of visa availability for CSPA purposes.

I came across an update that says dates for filing can be used to calculate the age at time at visa availability, but I don't think it applies to me because from what I see, it only applies to applicants living in the US, and even at that, the new law was made effective in 2023, while the lawyers handling my case submitted the enquiry way back in 2021.

I don't know if it's possible for the lawyers to make such a mistake, or if there was a special reason they used the date for filing chart instead of the final action date when making the petition/inquiry to add my name back to the CAEC portal. I asked the lawyer about their reasons for using that particular date, but no substantial feedback has been received. Is there something I'm missing concerning how the CSPA works, and why the lawyers feel like I won't be denied despite them making a mistake in the CSPA age calculation. I would appreciate any help/opinions on the matter, thank you

[aagarwal0919]

Hello,

Your situation under the CSPA is understandably complex, so let’s go through the key points.

The CSPA is designed to help child beneficiaries of visa petitions avoid "aging out" by freezing their age under certain conditions. To determine CSPA age, we calculate:

CSPA Age = Age at Time of Visa Availability - Pending Time of I-130 Petition.

In your case:

• Your date of birth is April 21, 1999.
• Your I-130 petition was filed on May 28, 2008, and approved on August 12, 2008 (pending for 76 days).
• Your priority date became current under the Final Action Dates chart on August 1, 2020.

On August 1, 2020, you were 21 years and 3 months old. Subtracting the 76 days the I-130 was pending, your CSPA age was approximately 21 years and 15 days—just over the age limit.

To benefit from CSPA, you must have sought to acquire lawful permanent residence within one year of visa availability (August 1, 2020). This includes actions such as:

• Paying the immigrant visa fee.
• Submitting Form DS-260.
• Contacting the National Visa Center (NVC) to pursue your case.

Your DQ date (July 24, 2021) suggests that you acted within this one-year window, fulfilling this requirement.

You mentioned your lawyers used the Dates for Filing chart (January 2020) for calculations. This chart isn’t generally applicable for consular processing cases, as only the Final Action Dates chart is used to determine visa availability for CSPA purposes. The 2023 policy update allowing Dates for Filing only applies to adjustment of status within the U.S. and isn’t retroactive.

Your lawyers may have reinstated your name on the NVC portal based on these calculations, but this doesn’t guarantee approval. The consular officer will ultimately determine your eligibility during the visa interview, and based on the information you’ve shared, there’s a significant risk of denial.

It’s critical to get a clear explanation from your lawyers about their calculations, the rationale for using the Dates for Filing chart, and how they addressed the “sought to acquire” requirement. If their response isn’t satisfactory, consider seeking a second opinion from another immigration attorney to assess your options. I used Skiplegal.ai to get information, please note I am not a legal advisor.

Good luck, and I hope everything works out for you!