How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Guillermo J. Senmartin, Esq. Your Own...
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105669
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
9200179
Type Your Immigration Law Question Here...
Guillermo J. Senmartin, Esq. is online now
A new question is answered every 9 seconds

I'm the daughter of an Legal resident, the receipt date for

Customer Question

I'm the daughter of an Legal resident, the receipt date for my petition was July 8th 2014, thr priority date was July 7 2014, the notice day says November 21st 2014. I was in the cathegory of unmarried child under 21 of permanent resident INA 204 (a) 2 (A). I was born on October 21 1994. I aged out! They sent me a notice saying that I was bumped to the F2B, now my wait time as a Mexican is about 20 years. Can I apply the section of the cspa rule that says
"CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition"
If yes how can I appeal and how much time do i have before the time I can substract runs out?
I have sent questions to USCIS and they do not respond.
I am desperate I had lost all hope but I will hire a lawyer but in the mean time, I need to know if this is real and possible.
Submitted: 2 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Hello! My name is***** and I am a licensed attorney with more than 14 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

Please give me a few minutes to review your question and I will be right with you with an answer. Sorry for any delay. I may have to do some research and at the same time I read and type fast, but not that fast! Thank you for your patience.

Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Sorry for the delay. Be careful with miracle solutions because that's how people take advantage to steak thousands of dollars from a person that is desperate and has lost hope. I will give you the truth and help if I can. I just ask that if it is bad news that you not shoot the messenger. Shooting the messenger is either leaving a negative rating (usually reserved for rude or unprofessional experts) or not leaving a positive rating at all.

Are you saying that the I-130 was filed July 7, 2014 and approved November 21, 2014?

Customer: replied 2 months ago.
Hi Guillermo, thank you so much, the answer is yes to both questions.
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Ok. The way that the CSPA works is in a nutshell, you get to add the time that USCIS takes to approve your I-130 to your age of 21. If a visa becomes available before turn 21 + that extra time, you are covered. If not, then you are out. So basically, you get to add 4 months and 14 days to your age of 21. Now we have to see when and even if a visa became available before you turned 21, 4 months and 14 days. What is your age now?

Customer: replied 2 months ago.
21 will turn 22 in October.
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Are you currently in the U.S.? In what status?

Customer: replied 2 months ago.
I am in the USA, I dont know because I reached all the way to the end and when I got the notice to send Affidavit of support they which was before the interview a few days after they sent me the cathegory change all right around January of this year. I sent in the affidavit of support anyways since they had already asked me and my minor brother and sister we sent all the affidavits at the same time and they got an appointment in Juarez but I didn't. They have ignored all communication.
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

But you are in the U.S. out of status? You entered illegally or with a visa? Which visa?

Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Don't be afraid to answer. I am not going to ask you for your name or anything like that. I need to know because of the provisional waiver that you will probably need.

Customer: replied 2 months ago.
We sent form I-30, Ds-260, I-485, I-864 and I entered as a tourist with my whole family. My AMCit sister petitioned my parents and they got their greencards and petitioned us.
Customer: replied 2 months ago.
B1/B2 was my visa when I entered.
Customer: replied 2 months ago.
How can I find out what my status is? I am not a tourist definitely, I did file an adjustment of status but they might have ignored like the affidavit of support. I do have all the receipts
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Ok. Then I assume you are out of status at this point and you will need the provisional waiver. Luckily, for a change, I not only have good news for you, but two pieces of good news for you. Most importantly looking at the Visa Bulletin for April, a visa became available to you April 1st. This means you are covered even without the CSPA because you were still under 21 on April 1st. Second, they just expanded the provisional I-601A waiver to allow U.S. Lawful Permanent Resident parents to apply for minors. So first, have your father file an I-601A immediately. Here are a couple of links:

https://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers

https://www.uscis.gov/i-601a

Also contact the National Visa Center (NVC) referencing your case number ***** explain to them that you were under 21 when a visa became available to you in F2A category under Mexico on April 1, 2016:

https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-april-2016.html

So follow the NVC process, but don't schedule the interview until you get the I-601A pre-approval.

Now, if you filed a I-485 before your I-94 expired and after April 1, 2016, then you are correct in ignoring the NVC and just follow the Adjustment process. You may even have been able to file the I-485 before April 1, 2016.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, you may have to scroll up to the top of the page or click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

Customer: replied 2 months ago.
Hi Guillermo I think you might be confused I tuned 21 October 2015 or do you mean 21 accordimg to the CSPA calculation?
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Then you might have just missed it by a month and a half. When did you file the I-485?

Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Actually, I think you missed it by three weeks. You were protected until 21, 4 months and 14 days. So had a visa become available to you on March 1st, you would have been ok, but since it became available to you April 1st, you are not protected. I am truly sorry. I wish I had better news for you. I mean since you did enter legally, you could marry a U.S. Citizen if the marriage is real, of course, but through your father, you will have to wait. Again, I am truly sorry.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. If you do not see the stars or smiley faces, please scroll to the top of the page to see them or click on my name and they should come out. Also, we do NOT finish just because it says "Rate to Finish" or something like that. Your question does NOT close and you can continue to ask questions without additional charge on the same question thread even after you leave a positive rating. Thank you for your understanding!

Customer: replied 2 months ago.
Can I ask an other question? If my mother passes Colombian nationality to me can my dad petition me again under a different country of chargeability? I feel sick of reading and finding out bad news, I will have to go back to Mexico but now without a family and the most decrepit and devaluated currency, my luck coudn't be worst!
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

You can ask as many questions as you like. Unfortunately, it goes by country of birth, not citizenship. If you married a person not born in Mexico, the Philippines or India, you could use cross-chargeability like that, but if you married before your father became a U.S. Citizen, you would invalidate your I-130 because there is no category for married son or daughter of Lawful Permanent Resident. Even if you waited until your father became a U.S. Citizen, category F3 still has about a 10 year wait. I a so sorry. This is yet another reason why we need immigration reform.

Let me know if you need anything else, but please do not forget that positive rating. Thank you!

Customer: replied 2 months ago.
11 November 2015, I sent the form I-485.
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Unfortunately, the answer remains the same. While you may have been able to file an I-485, it will ultimately be denied because you aged out even with the CSPA.

Please don't forget that positive rating. I only keep mentioning it because if you can believe it, about 30% to 40% of people on this site don't leave a positive rating and since I am not given a salary to be here, it's as if I spent my time responding for free. So you can understand, that's like working 40 hours per week, 5 days a week and not being compensated for every Friday and most Thursdays. That's the only reason I keep mentioning it. Sorry if it is a bother as it is not my intention. If you don't see the stars by my name, I think all you have to do is scroll to the top of the page or click on my name and they will come out. Thank you for your understanding.

Customer: replied 2 months ago.
They sent me a notice saying the visa is availabkr for you get ready for the interview why did they take it away? How coukd they have done that? Are your sure the calculations are correct? This was sent to me November 2015
Customer: replied 2 months ago.
It might have been left over of the previos category? I just found thr letter so technically the visa was there for me just one month after i turned 21 i have the paper here but this thing is telling me no more than 5 meg. I cant show you.
Customer: replied 2 months ago.
I need an expert like you to help me analize this the right way. I dont mean to he rude but i just went from being the happiest person to crying because you tought my bday was 1 year later. Please please is there an appeal this is probably a super 1 in a million case what can I do legally? I will give you a good rating but I need your expertise
Customer: replied 2 months ago.
A year within a visa becoming available so there is a rule that talks about 1 year. What must I do?
Customer: replied 2 months ago.
Guillermo please!!!
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Yes. If the dates you gave me are correct, then yes, the calculation is correct. You can input the dates yourself if you like. Here is the link:

http://www.immihelp.com/immigrant-visa/cspa-calculator/

Remember that the date a visa became available in that category was April 1, 2016.

Since you are not eligible, the I-485 will ultimately be denied. Please do not shoot the messenger. Remember that this is not my fault. I am not given a salary to be here. Please do not make me pay for something that I had no control over. I thank you for your understanding. Even after you leave a positive rating, you can still ask follow-up questions without additional charge.

Customer: replied 2 months ago.
If the dates I gave you were correct what forms should I file. Contacting the NVC by phone will sufice to let them know that I was still under age and what about the 1 year rule? What complete set of steps can I follow to assure that if I enter under the CSPA protection my petition works? Which forms do I need?
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

If the dates you gave me are correct, then there is nothing to file. You aged out. If the dates you gave me are incorrect, then put them into the calculator and see what comes out. If you are eligible, then follow my original answer. If you are ineligible, then unfortunately, there is nothing that can be done through that petition at this time.

Let me know if you need anything else, but please do not forget that positive rating. Thank you!

Customer: replied 2 months ago.
Guillermo, I am sorry to be a pain but I went thorough the form you suggested and it is not going to work unless NVC decides to adjust my status from F2b to F2a, how do I get them to do that? I called and they referred me to the asknvc help e-mail, I have sent them an e-mail to ask them to help me recalculate based on the availability of the visa, but is there a way to make it formal? Also legally the definition of "a visa became available" vs "visa bulletin current date" what is really used for the CSPA calculation? Where can I find out about the CSPA federal legislation and not just the interpretation? The dates I gave you are correct, I got them from the notice :Receipt date: July 8 2014
Priority date: July 7 2014
Notice date: November 21 2014The only question to clarify is whether the federal law is strict about the date of the visa, this tables are just a guidance but are they law? I am familiar with the web page you sent to me to make the calculation but they are basing it on the visa bulletin dates but the visa became available way before the date and that is the factor that would make me qualify, so is there a way to dispute? "The date a visa became available" vs "visa bulletin current"? For the purpose of facilitation of the union of families wouldn't it be convenient to use the date that is best for the applicants if there isn't a law that prevents you from doing it? I appreciate your help.
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

I already explained that if the dates that you gave me are correct, you aren't getting into F2A. I understand that this is not what you want to hear, but it is the stark reality. It's not a bother, but it is the reality. And to answer the question, yes, the federal law is strict about this. There has been significant litigation over the years and unfortunately, the matter is settled. If the dates are correct, you aged out. There is no wiggle room. The Priority Dates are basically a waiting line of people that have applied before you and you aren't allowed to jump ahead of anyone else in line, not even in an emergency. I understand that you feel this is not fair and I agree with you that it's ridiculous that you missed your opportunity by just a few weeks, but it is what it is. Again, I wish I had better news for you, but please don't make me pay for the broken system of immigration laws that we have. That is not fair to me. I thank you in advance for your understanding. Please don't forget that positive rating. Thank you.

Customer: replied 2 months ago.
Hi Guillermo,I can see you have clearly become annoyed by all my questions. The law is strict but also explicit the bill is here and it doesn't mention the bulletin you could have just said that but instead you chose to argue. I hate your answers because you do not have grounds and they are not concrete. Plus you made some major mistakes in basic math with my age.....Definitely not giving you a good rating I rather stay neutral and not rate at all..From the congessh) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-‘(1) IN GENERAL- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--‘(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by‘(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Where I made the mistake was that you said, "21 will turn 22 in October." and I accidentally read it as that you would turn 21 on the 22nd of October." I was so wanting you to make it that this was how I read it. My apologies for wanting the best for you and misreading that. That doesn't mean that my correction was wrong. Now you are doing what I asked you not to do which was shoot the messenger. I understand that you are frustrated, but please don't shoot the messenger. I spent time and effort to explain this to you. Now you quote a law that actually gives me the grounds that you say that I don't have. So what are you trying to prove with that which supports what I am telling you? I ask you to be fair. You are not being fair, you are being emotional and blaming me for something that is not my fault. You want to lash out, lash out at the U.S. Congress and get all your U.S Citizen and U.S. Lawful Permanent Resident friends and family to write their three U.S. Congressmen and ask them for reform. That's where you should address your frustration and anger, not towards me that I tried to help you but there isn't anything in the law that helps you in regards ***** ***** CSPA at this time. So what else may I answer for you?

Expert:  Guillermo J. Senmartin, Esq. replied 2 months ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!