Seeking Advice - Filing for my younger brother

Hi Everyone,
I recently discovered this forum so pardon me if I am posting this in the wrong thread.
I am a US citizen by naturalization, who is planning to file I-130 for his younger brother. He was born on Jan 24, 2002 and currently the wait time is 10-15 years for F4 category. However, the wait time for a permanent resident filing for his son under 21 or unmarried son over 21 is significantly less. I have two questions regarding this:

  1. I have already filed I-130 for my parents so would it be advisable for them to first immigrate to US and then file for my younger brother or it doesn’t make any difference? If I file in F4 category, can we upgrade the file to F2A or F2B category, once my parents immigrate?

  2. In what scenario would CSPA help my brother’s case?

Any input is appreciated. Thanks!

@anil_am22 Please advise!

Generally, an earlier priority date may be recaptured and retained if it is the same petitioner filing for the same beneficiary (including derivative beneficiaries) and the prior I-130 was not terminated, denied or revoked, or the prior I-130 approval did not result in an immigrant visa issuance.

So in your case if you file under F4 and then once your parents have LPR/GC, if they file under F2A (if child under 21) or F2B (adult unmarried child) it won’t help much as the petitioner will change and you won’t be able to port the priority date.

Your best bet will be if your parents get green card and if your brother is still under 21, F1A is current.
Or the last resort is if you find him a citizen bride :slight_smile:

CSPA will only help if your brother’s priority date becomes current before he age out. If he age out, automatic conversion will occur, for e.g. from F1A to F2B. Similarly if your parents get their citizenship, your brother’s category may be converted to F1 or F3 depending on whether he is unmarried or married at that point in time.
Some excerpts about CSPA eligibility from USCIS…
Eligibility criteria for CSPA include:

  • Beneficiary must have a pending or approved visa petition on or after August 6, 2002
  • Beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • Beneficiary must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of an adjustment/green card application or immigrant visa application. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the I-130 petition was approved, whichever is later.

A CSPA formula is used to determine the child’s “CSPA age.” USCIS will take the child’s age at the time an immigrant visa number first became available and deduct the time the I-130 petition was pending from the child’s age.

The formula for calculating CSPA age is: Age at Time of Visa Availability MINUS Pending Time For I-130 Petition

Age at Time of Visa Availability is the later of these two dates:

  1. The date the petition was approved; OR
  2. The first day of the month of the Department of State Visa Bulletin that indicates that a visa is available in the Final Action Dates chart.

Pending Time for I-130 Petition is:

The number of days between the filing date and the approval date for the petition.

If the CSPA age is younger than 21 years of age, the beneficiary keeps the same preference category even if he turned age 21 – provided he seeks to acquire permanent residence within one year of when an immigrant visa or green card becomes available.

The “sought to acquire” requirement may be met by properly filing a Form I-485, Application to Register Permanent Residence or Adjust Status, a Form DS-260, Immigrant Visa application, or an I-824 Application for Action on an Approved Application or Petition. In some cases, the person may argue “substantial steps” had been taken within 1 year, such as hiring an attorney to prepare the application, or filing an application but getting a rejection notice. There is no exception to this requirement. The real question is whether concrete steps or substantial steps were taken within the 1 year deadline.

When the minor child of a U.S. citizen turns 21 and is not protected by CSPA, he or she is converted from the Immediate Relative to F1 category.

When the minor child of a permanent resident turns 21 and is not protected by CSPA, he or she is converted from the F2A to F2B category.

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You can use this CSPA calculator.

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