My child's I485 based on my Eb2 application has just been denied. Here is the detailed info：
Child birthdate: Jan. 29, 1993
My Eb2 Priority Date Nov. 29, 2011
My Eb2 I140 Filed on July, 2 2012, approval Date December, 6 2012
My Eb2 Priority date became current on May 1, 2015
I filed Eb3 I140 and I485 concurrently on Jan 10, 2014, using Eb2 priority date to downgrade Eb2 to Eb3. EB3 I140 was approved on June, 16, 2014. EB3's priority date is not available yet beause of backlog and seems to possibly available in July, 2015 (current cutoff for eb3 is Sept, 1, 2011) .
I just received a notice that my child's I485 based on my EB2 petition has been denied as she has aged out (21.8 years old) base on their caculation using CSPA.
We checked with a lawyer. She said that we could file a motion for reconsideration based on my Eb3 petition and based on EB3, and that my daughter was still under the protection of CSPA if using Eb3. I do not quite understand why my daughter is not aged out based on Eb3.
Is the lawyer right?
-The lawyer is right. Because your child filed I-485 on Jan. 10, 2014 when EB-3 priority date was current, her CSPA age was frozen at that time (Jan. 10, 2014) when she was not age-out yet (her actual age was < 21). If using EB-2 I-140, then her CSPA age was frozen on May 1, 2015 (the CSPA age clock was running until this date), and thus she was age-out.
Any explanations or suggestions?
The lawyer asks a huge number for the lawyer fee. Can I file the motion by myself? What retionale should I provide in my filling?
- Your child can do it by herself, but I am not sure whether you can justify this issue correctly to convince USCIS using the related immigration law. The lawyer is very professional in this issue. Has your personal I-485 been approved? If not yet, you had better not do the I-485 interfiling and just let your I-485 approved based on EB-3 I-140 in the future. Thus, USCIS may not be confused.
-The lawyer is right. Because your child filed I-485 on Jan. 10, 2014 when EB-3 priority date was current, her CSPA age was frozen at that time (Jan. 10, 2014) when she was not age-out yet (her actual age was < 21). If using EB-2 I-140, then her CSPA age was frozen on May 1, 2015 (the CSPA age clock was running until this date), and thus she was age-out.
Any explanations or suggestions?
The lawyer asks a huge number for the lawyer fee. Can I file the motion by myself? What retionale should I provide in my filling?
- Your child can do it by herself, but I am not sure whether you can justify this issue correctly to convince USCIS using the related immigration law. The lawyer is very professional in this issue. Has your personal I-485 been approved? If not yet, you had better not do the I-485 interfiling and just let your I-485 approved based on EB-3 I-140 in the future. Thus, USCIS may not be confused.
Please help!!! Many many thanks!
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