If I have filed Form I-485 with an approved Form I-140 in August 2021 based on EB3 Final Action Date. Is my kid protected from aging out if the dates have retrogressed in November 2021? I have read online that the age freezes when you file Form I-485 using the Final Action Date chart. Thank you!
I am referring to this example on the USCIS website:
Example 2: Application Filed Based on Final Action Dates Chart
In May, the Final Action Dates chart indicates availability for the applicant’s immigrant preference category and priority date. The applicant files an adjustment application in June, and then the visa retrogresses in July (based on the Final Action Dates chart). In this case, USCIS calculates the applicant’s CSPA age using May 1 as the visa availability date (based on the Final Action Dates chart). If the applicant’s calculated CSPA age was under 21, his or her CSPA age is locked in through final adjudication and USCIS holds the application until the visa becomes available again.
For both examples, if the applicant’s calculated CSPA age was 21 or older using the May 1 visa availability date, the applicant has already aged out and will not be eligible when the visa becomes available again. In these cases, USCIS denies the application.
The age will freeze 1st of the month that the date becomes current (visa is available). You need to file the AOS within 12 months of the date becoming current. Also you can deduct the total no. of days your first I-140 was pending (time between filing date and approval date of I-140) from the age of your child at the time when visa is available and that will be considered the real age for purpose of CSPA. If the age is below 21, you can file the AOS.
Hi Kaplesh, do we need to have have i-140 approved or just by filing 485 when the final action date is current locks the child age . I am seeing some contradictions related to I-140 approval requirements. Thanks
Excerpts from below link.
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.
So in case of concurrent filing (140 + 485) at the time your PD is current under the final action chart, the visa is considered available on the date I140 is approved.
If concurrent filing is done based on date for filing chart and your I140 is approved before your PD gets current final action chart, then the date visa is available will be 1st of the month your PD gets current in the final action chart. If PD gets current under the final action chart before the I140 is approved, the visa available date will be the date I140 is approved.
Note : If an applicant has multiple approved petitions (I140) the applicant’s CSPA age is calculated using the petition (pending time for I140 filed with 485) underlying the adjustment of status application.
The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. The formula determining the length of time the petition was pending is as follows:
Approval Date - Filing Date = Pending Time
Your mother filed a petition for you on Feb. 1, 2016. USCIS approved the petition on Aug. 1, 2016.
Aug. 1, 2016 - Feb. 1, 2016 = 6 months
The formula for calculating CSPA age is as follows:
Age at Time of Visa Availability - Pending Time = CSPA Age
You are 21 years and 4 months old when an immigrant visa becomes available to you. Your petition was pending for 6 months. Your CSPA age is calculated as follows:
21 years and 4 months - 6 months = 20 years and 10 months
Thank you Kalpesh for the details