I was with employer A in 2012 , they filed my labor and my priority date is 02/24/2012 . I got my EB2 I-140 approved through them and then I left employer A by 2018. Then I joined employer B and they started my PERM late after a year, now my labor is approved through employer B in EB2. Then I filed my I-140 in premium and I-485 together, I-140 and I-1485 receipt dates are 11/29/2022( So in Nov 2022 fully, my priority date is current in FAD Nov bulletin ) . But my I-140 is approved 12/01/2022 during which time my priority date is not current in FAD December bulletin. I have a aging out daughter whose DOB is Sep, 12 2002.
Would like to know whether my daughter’s age is locked under CSPA rule from USCIS or not. I used your CSPA Age lock calculator in which it asks about I-140 receipt date only and not approval date. So as per that calculator, it shows my daughter’s age is locked.
Will USCIS take into account I-140 receipt date or approval date for CSPA age lock. But remember I filed concurrently I-140 in premium and I-485 together on 11/29/2022 itself.
I dont think CSPA even matters in your daughter’s case as she will turn 21 in Sep 2023 and you already filed adjustment of status in Nov 2022 when the visa number was available, so the age is locked at 20 years and 2 months even if the date retrogressed. She should get her GC EAD along with parents.
The age is calculated by deducting the number of days your I-140 was pending ( the one that is the basis of your I-485 if you had multiple I-140 from different employers) from the age at the time the visa number was available, which in your case is 1st Nov 2022.
Thanks for the reply. So you mean that my daughter’s age is frozen as per CSPA age lock rule?. So in case if my priority date does not become current in coming bulletins even after Sep 12, 2023 ( when my daughter ages out for H4), can she continue in 485 EAD? ( I hope in that case, I don’t have to apply for F1 now, if you think my daughter’s age is locked under CSPA on 11/29/2012). But again I repeat, my I-140 and I-485 receipt date is 11/29/2012, but my I-140 is approved on 12/01/2012 by that date, EB2 is not in FAD for my priority date which is 02/24/2012 and EB2 FAD retrogressed to 10/08/2012.
I already answered above. Not sure if you went through the USCIS link I shared.
Your I-485 was received by USCIS in the month your PD was current so your child’s age is locked.
You may consult your employer’s immigration lawyer or online to double check.
I checked with 2-3 attorneys through online consultation , they said age is not locked as I-140 is not approved before Nov 30, 2012. So seems your AM22Tech online CSPA calculator takes into account I-140 receipt date and not approval date which seems wrong.
Did you mentioned that you filed concurrently?
In your case, as you filed concurrently as far as the I-140 is approvable, and the child was below 21 when immigrant visa was available, child’s age is locked.
Age at Time of Visa Availability
The date the visa is considered available is the later of these two dates:
The date the petition was approved; or
The first day of the month of the Department of State Visa Bulletin that indicates that a visa is available for you in the Final Action Dates chart.
Retrogression After Applicant Filed Adjustment Application
If an eligible adjustment applicant filed an adjustment application but the visa availability date subsequently retrogresses, USCIS holds the application until the visa becomes available again and the application can be adjudicated.
If the applicant filed an adjustment application based on the Final Action Dates chart, and his or her CSPA age at the time of filing the application was under 21, then the applicant’s CSPA age is locked in through final adjudication of the application.[34]