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QUESTION: What is the current position of USCIS on CSPA with regards to F2A and derivative beneficiaries (dependent of principal applicant)?
Answer: On May 6, 2008, the USCIS started to apply CSPA retroactively to those F-2A and derivative beneficiaries. Beforehand, the USCIS interpretation is that CSPA is not retroactive.
Question: Who are covered by the retroactive application of CSPA?
Answer: Retroactive application means those who age out before August 6, 2002 (effective date of CSPA) can now be considered below 21 years under certain conditions.
For immediate relatives of US citizens, the date of filing freeze the age of the child.
For F-2A and derivative beneficiaries, the age of the child is determined by certain mathematical calculations.
Question: How do F-2A and derivative beneficiaries benefit from retroactive application of CSPA?
Answer: There are steps needed to determine if the F-2A and derivative beneficiaries qualify for retroactive application of CSPA.
The first step is to determine the adjusted age of the child by deducting the time the I-130 is pending to the biological age.
If the adjusted age is below 21 years of age, check if the visa is available to him on or before August 6, 2002.
If the visa is available check if the child did apply for an immigrant visa within one year from the time the visa is available.
These children may not have an immigrant visa application pending on August 6, 2002. In addition, they should not have been denied if they have a visa application on or before August 6, 2002.
Question: What is the current procedure of USCIS if the child is found to be below 21 years based on the above computation?
Answer: The USCIS is now applying CSPA retroactively only to those whose visa became available on or after August 7, 2001. The reason for this is that the Department of State has a one year filing deadline for those whose visa becomes available. This period covers one year from August 7, 2001 to August 6, 2002, the effective date of CSPA.
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