Retrogression of F-4 (Brothers/Sisters of U. S. Citizens) Category from India

Lal Varghese, Attorney at Law, Dallas

The Child Status Protection Act (CSPA) enacted in 2002 allows and protects a child under certain circumstances and limitations who may turn 21 or aging out to be eligible for permanent residence as a derivative through his or her parents. The interpretations and calculations are very complex while there may be different interpretations by different agencies like UCIS and DOS under the CSPA, the consular officer may take a restrictive view of a CSPA provision and refuse the visas. There is no appeal process to review a consular officer’s decision, and the refusal may seem to be the end of the road and separation from the “aged out” child from the parent.

INA §203(h), introduced by Section 3 of the CSPA, provides the provision for determining the age of an aged out  derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by considering the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability.

This issue has come recently when the priority date under F-4 category for India retrogressed from July 22, 2003 as per visa bulletin for May 2016 to January 1, 2001 as per visa bulletin for the month of June 2016. If the priority date moves about one month per month it may take only about 2 years and 6 months and if it moves two months every month it may take about than 1 year and 3 months for the priority date to current and if it moves only 15 days a month it may take about 5 to reach their priority date. Unfortunately, there is no way to predict the future movement of priority based on the demand of visas under F-4 category from India. From our experience for the past 25 plus years we anticipate that it may move about an average of one month per month, which means their priority date may become current within next 2 years and 6 months or so.

When the DOS pulls back priority date to limit the number of visas allotted within the quota it is known as “retrogression” of priority date since only 65,000 visas are allotted under F-4 category for the whole world during each fiscal year and out of this number each country has per country quota allotted. Hence, in order to limit the number of visas allotted for India for this fiscal year, they have to pull back or retrogress the priority date. The last time it happened was in January 2011 at which time it went back about two years and this time it went back about 2 1/2 years.

There are several types of issues affected to people who have reached priority date according to May visa bulletin especially those children who were aged out, but were eligible to obtain immigrant visa under CSPA. In order to obtain the benefit under CSPA the aged out child or his or her parents must prove that they have “sought to acquire the status of permanent residency” within one year of visa availability. If the parent or aged out child had initiated steps for payment of the visa processing fees with the National Visa Center within the one year period it is constituted “sought to acquire” permanent residency within the one year period. Similarly, the filing of the actual application for the immigrant visa, DS 260 online filed is also considered as ‘sought to acquire” within one year period as provided under the CSPA rules. The Board of Immigration Appeal rules in couple of decisions that if the parent or the aged out child has hired an attorney the same is also considered as ‘sought to acquire” permanent residence within one year. In all such cases the age of the child is locked even if the visa is retrogressed as per DOS.

Why the terms “sought to acquire” is important for cases pending before NVC, since DOS interpretations of the CSPA provisions is different from the interpretations of the USCIS.  The CSPA thus artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements, however, is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline. As mentioned above both the Department of Home Security (DHS) and the Department of State (DOS) have interpreted the phrase “sought to acquire” narrowly, although unpublished decisions of the Board of Immigration Appeals have taken a broader view. DHS limits this phrase to filing an I-485 application for adjustment of status.  The DOS too has interpreted “sought to acquire” narrowly and indicated that in consular processing cases, the date that a child seeks to acquire LPR status is the date Form DS 260 is submitted by the child, or by the child’s parent on the child’s behalf to the National Visa Center (NVC). If the principal beneficiary parent adjusts status in the US, and the child will be applying for the visa overseas, the DOS requires the principal to file Form I-824 to initiate the child’s follow-to-join application.

Hence, if an aged out child or his parents hired an attorney or paid the fee with NVC or filed DS 260 online within one year of the priority date became current for the first time, the aged of the child is locked as per the DOS. But if the parent or aged out child did not initiate any of the above things within one year of the priority date became current for the first time and before retrogression, then according to DOS, they have to wait for the priority date to become current again and the eligibility of the aged out child will be calculated on the basis of the age when the priority date became current second time and if eligible such child can immigrate with the parents. Hence, it is very important that the parents or aged out child must retain at least an attorney on or before May 31, 2016, since the priority date will be retrogressed from June 1, 2016.

But the interpretation of USCIS is more or less the same, but there is subtle difference between the two. According to USCIS, if an application for adjustment of status (I-485) is filed by an eligible applicant who is physically present in U. S. A., and when the priority date retrogresses, the age of any aged out child is locked and USCIS will hold such cases and will resume the processing until the priority date becomes current again. USCIS is not very particular about whether the applicant has “sought to acquire” within one year of the visa availability. If the applicant did not seek to acquire and file I-485, then such applicants has to wait until the priority date or filing date to become current again before they can file I-485. Hence, the interpretation of USCIS of the CSPA is more in favor of the applicants for visas especially for those aged out children since the their age is locked by filing I-485. But BIA has interpreted the term in the light of DOS interpretation that even if the applicant’s parents or the aged out child hired an attorney it is considered as ‘sought to acquire” within one year of the visa availability. As we mentioned above the interpretations are very complex by different agencies and BIA and you need to seek the help of an expert immigration attorneys and in most cases we will be able to obtain visas for aged out children by making legal arguments before USCIS, NVC, Consulate or DOS.

On the other hand, if there is no aged out children in the family and the priority date is retrogressed, they have to wait for the priority date to become current again for scheduling them for interview. They can still continue to process the case before NVC provided the case is within the dates for filing the applications for visas as per the visa bulletin. Remember, the visa bulletin has two dates for each category now, one is final action date for issuing visas and the other one is to file applications or initiate process before NVC.  It seems that these are complex issues and always seek the help of an immigration attorney who is especially a member of American Immigration Lawyers Association and has lot of years of experience and expertise in family immigration matters especially consular processing.

Disclaimer:  Lal Varghese, Attorney at Law, with more than 36 (about 21 years in U. S. Immigration Laws) years of experience as an Attorney, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information since it is obtained from several sources including USCIS, DOS web sites, AILA and other Internet based legal sources, and published for the benefit of the general public. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice or contact your State Bar Organizations or local Bar Associations or American Immigration Lawyers’ Association (AILA) for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com or www.facebook.com/groups/usattorney for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.