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The Child Status Protection Act (Public Law 107-208, 116 Stat. 927, August 6, 2002)

by Pravinchandra J. Patel

Introduction

On August 6, 2002, the Child Status Protection Act ("CSPA"), Public Law 107-208, 116 Stat. 927, was signed into law, effective immediately. This article provides an analytical overview of this statute.

Basically, any immigrant petition that is currently pending, as well as any petition that is already approved but no final action on the beneficiary's application for adjustment of status or for an immigrant visa has been taken, is subject to the provisions of the new law. The intent of the new law is to preserve child status for certain alien children beneficiaries who may have aged-out, particularly because of long delays in INS processing. Thus, it radically changes the process for determining whether or not a child has "aged out" for the purpose of the issuance of visas and the adjustment of status of aliens in most immigrant categories. It is important to remember that the Department of State has candidly acknowledged that the language of some CSPA sections is complex and that there may be refinements in interpretation in the future. Therefore, one has to keep an eye on any guidance or instructions that the DOS and/or INS may periodically issue in the future.

This statute contains eight sections. Section 1 is a short title section providing that this Act may be cited as the Child Status Protection Act. Analysis of Sections 2 through 7 follows next. The last Section 8 contains the "Effective Date" provision.

CSPA § 2

Section 2 of the CSPA amends INA § 201, to add subsection (f) to § 201. There are three different paragraphs (1), (2) and (3) in subsection (f). While each paragraph has its own different import, all three pertain to, as the general heading for subsection (f) indicates, determining whether certain aliens are immediate relatives for CSPA purposes. The term "immediate relative" is the key to a proper interpretation of Section 2.

Paragraph (1) of § 201(f) requires the Service to use the date of the filing of a Relative Petition (I-130) to determine the age of a beneficiary adjusting (or applying for an immigrant visa at a consulate) as the child of a U.S. citizen. However, this is the only provision, which makes the initial petition filing date as the governing date for the purpose of adjustment of status or visa issuance, regardless of the age of the immediate relative child. In other words, in any other situation when a child cannot be considered an immediate relative, the same rule does not apply. It does not apply because the provisions of Section 2 (or § 201(f)) do not apply to any other situations.

Under Paragraph (2) of § 201(f), the governing date is the date of naturalization of the parent. If the child is under 21 on that date, then the child becomes an immediate relative of a U.S. citizen and can be deemed to be a child for the purpose of adjustment of status or visa issuance, regardless of the child's age at that time.

Similarly, under Paragraph (3) of § 201(f), the governing date is the date of the termination of the child's marriage. If, on that date, the child is under 21, the child becomes an immediate relative of a U.S. citizen and can be deemed to be a child for the purpose of adjustment of status or visa issuance, regardless of the child's age at that time.

Thus, in all three situations, under paragraphs (1), (2) and (3), the child must qualify as an immediate relative to be able to derive benefits of Section 2 of the CSPA, or, to say the same thing differently, to seek benefits under the newly added INA § 201(f).

CSPA § 3

With respect to CSPA § 3, its interpretation is the subject of ongoing discussions between the DOS and the INS. As a result, the DOS has requested that all consular posts seek an advisory opinion from the Visa Office of the DOS on cases that fall within § 3.

Section 3 addresses the question of whether certain aliens will be deemed to have remained or considered as "children" of lawful permanent residents of the United States even if they are no longer under the age of 21. It applies to children sponsored by their parents or who are accompanying or following to join family-based, employment-based, and diversity immigrants. Section 3 provisions are incorporated into INA through the addition of subsection (h) to INA § 203.

There is a basic operational difference between §§ 2 and 3 in that, unlike § 2 which looks at the Form I-130 filing date or receipt date, under § 3 the INS or consular officer will not be looking at the Form I-130 receipt date to determine whether an individual over the age of 21 can continue to be classified as a child for immigration purposes. Rather, the individual's age will be locked in on the date that the priority date of the Form I-130 for an individual becomes current. According to INS, this is the first day of the month that the priority date became current. The Section 3 formula for determining whether an individual covered by this section is still a "child" is that, once an individual's age is locked-in in this manner, then the number of days that the I-130 petition was not adjudicated by the INS (which is the time from the receipt date to the approval date) should be deducted from that age. This calculus holds true only if the beneficiary "child" applies for an immigrant visa or for adjustment of status within one year of the priority date becoming available.

Since this formula is rather complex, its interpretation is better illustrated by a specific example.

Example:
On January 2, 1998, a U.S. citizen filed an I-130 petition under the family-based 3rd preference category for his married son who was born in India. The married son is also described as the principal beneficiary of the petition. INS took one year to approve the petition on January 2, 1999. The petitioner's married son has a 14-year-old daughter born in India on January 1, 1984, and a 17-year-old son born in India on January 1, 1981.
No visa number is currently available for any alien under this category. Let us assume that a visa would become available for the married son (the principal beneficiary) on January 2, 2005.

Under these assumed facts, the Questions presented are as follows:
Question 1: Whether the daughter, who was 14 years old at the time of the petition filing date of January 2, 1998, would be eligible for an immigrant visa with her father (principal beneficiary); and
Question 2: Whether the son, who was 17 years old at the time of petition filing date (January 2, 1998), would be eligible for an immigrant visa with his father.

Answer 1: On January 1, 2005, when a visa becomes available to petitioner's married son, the daughter would have crossed the 21-year-old limit, and as such, under INA § 101(b)(1) as in effect prior to the enactment of the CSPA, she would no longer be considered a child and therefore lose her visa eligibility as an accompanying child of the principal beneficiary, unless she can qualify under § 3 of the CSPA, the provision that is relevant for a consideration of this question.

Section 3 provides that a determination of whether an alien satisfies the age requirement of INA § 101(b)(1) shall be made using 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 the number of days in the period during which the applicable petition was pending.

The first point to note for this provision is that the petition filing date is not relevant at all in the age determination under § 3. Also, as a footnote, the subsection (d) mentioned in this provision refers to § 203(d) relating to any child of the principal beneficiary, who derives eligibility as a derivative alien child in general.

Thus, by virtue of the CSPA § 3, an alien child could become eligible for an immigrant visa as a derivative alien child even if he or she has crossed the 21-year-old limit, provided that, following the calculations and deduction of time prescribed under the language of § 3, she is deemed to be under 21. The critical date for the calculation is the date when a visa becomes available for the married son, i.e., January 2, 2005. On that date the daughter is 21 years and 1 day old. However, § 3 provides for a deduction of time during which the applicable petition was pending. In the example under consideration, the I-130 petition was filed on January 2, 1998, and was approved on January 1, 1999. In other words, it was pending for 364 days, from January 2, 1998 to January 1, 1999. This period of 364 days should be deducted from her age of 21 years and 1 day, which brings her within the age limit of less than 21 years and is therefore deemed to be a "child" for purposes of visa eligibility as a derivative child.

Another important point to remember is that this result holds true only if the daughter seeks to acquire the status of an alien lawfully admitted for permanent residence within one year of such visa availability. Since a visa number would become available on January 2, 2005, she will have to obtain an immigrant visa and enter the U.S. as an immigrant before January 2, 2006, to remain eligible under CSPA.

Answer 2: With respect to the principal beneficiary's son who was 17 years old in January 1998, when a visa becomes available to the principal beneficiary on January 2, 2005, this son would have attained the age of 24 years and, as such, under INA § 101(b)(1) he would no longer be considered a child and therefore lose his visa eligibility as an accompanying child of the principal beneficiary, unless he can qualify under CSPA § 3.

As noted above, the I-130 petition was pending for one year or 365 days. Even if we deduct this one-year period from his age, such deduction would bring his age down to 23 years. In other words, he is still above the prescribed age limit of less than 21 years to retain eligibility. Therefore he cannot be deemed to be a "child" of the principal beneficiary for purposes of visa eligibility as a derivative child.

Thus, the daughter would become eligible for a visa, but the son would lose his eligibility. However, there is another provision in paragraph (3) of CSPA § 3, which provides for "Retention of Priority Date" for any alien who, after the above calculation, is determined to be 21 years of age or older. This is discussed below.

Under this interpretive formula, however, there is a small possibility that the beneficiary (including his or her dependents) of a family-based 4th preference petition (citizen's brothers and sisters) could benefit from the CSPA. The long backlog of about 12+ years in general (20+ years for Filipino natives) for U.S. citizen's brothers and sisters (and their dependents), currently exists because 4th preference visa numbers are not available, and not because the I-130 petitions were pending without approval. Indeed, no I-130 petition could have remained pending without approval for such a long time. Therefore, when the Section 3 formula, as outlined above, is applied to any family-based 4th preference case, in most cases the child would age-out because on the date a visa number becomes available, the child is already long past his or her 21st birthday, and the only time that could be deducted is a relatively short time of a few months (or even a few weeks) that the INS may have taken about 12 years ago to approve the I-130 petition. Even if that short time is deducted, in most cases the derivative child would not come below the age of 21 under this calculus. So, the CSPA hardly helps the derivative children of the principal beneficiary of the family-based 4th preference petitions. Nonetheless, the following specific example is an illustration of a scenario in which a child of the principal beneficiary of a family-based 4th preference petition would derive benefits under the CSPA.

A U.S. citizen filed an I-130 petition for her alien sister (the principal beneficiary) on September 15, 1990, which listed a son born in India on September 1, 1981. The INS took 2 months to approve it on November 16, 1990. According to the visa chart issued by the Visa Office of the DOS for October 2002, the family-based 4th preference visas have become available for any 4th preference petition filed on or before October 1, 1990, for natives of all countries except Mexico and the Philippines. Under § 3, October 1, 1990 is the date when the principal beneficiary's son's age gets "locked-in." On that day the son was 21 years and one month of age. However, the § 3 formula dictates that the two months during which the I-130 petition remained "pending" with the INS should be deducted from this age. That calculation would bring the age of the derivative son under 21, and would prevent him from being aged-out. So, he remains eligible for a 4th preference visa. However, § 3 also dictates that the son must apply for an immigrant visa within one year of the visa availability date of October 1, 2002, i.e., before October 1, 2003, to derive the age protection benefit of CSPA § 3.

This example illustrates a narrow set of circumstances under which a derivative child of the principal beneficiary of a family-based 4th preference petition could derive benefits under the CSPA.

Retention of Priority Date

In the above Example, the principal beneficiary's son (or daughter) is determined to be above 21 years of age. Now, Paragraph (3) of CSPA § 3 declares that if the age of an alien is determined to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of INA § 203, "the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition." This language tends to create some confusion. For example, the question is what is the meaning of the term "the alien's petition" that would stand automatically converted to any other appropriate category. In the above example, while this term seems to apply only to the principal beneficiary (the married son of the original petitioner), he has not yet filed any petition for his derivative son who, by virtue of his 21+ age, became ineligible for a visa as a derivative child. Does it therefore indicate that the principal beneficiary, upon becoming a lawful permanent resident by entering the U.S. with an immigrant visa, may file a relative petition for such unmarried son under the family-based 2nd preference category, and this retention of priority date provision may then have application to that subsequently filed petition? While the only possible answer is in the affirmative, which follows as a matter of statutory construction that no language of a statute is without any meaning, it creates one more confusion because the new petition cannot possibly be automatically converted to any other appropriate category, for it continues to remain a petition under the 2nd preference category.

Aside from this confusion, if this retention of priority date provision has any meaning at all, let us consider its effect. For this purpose, we may assume that the principal beneficiary enters the U.S. an immigrant and then files an I-130 petition for his son on March 1, 2005. The retention of priority date provision then confers a distinct advantage to the beneficiary of this I-130 petition in that he would recapture "the original priority date" of "the original petition", which, in the above example, is January 2, 1998. In other words, the principal beneficiary's priority date in the above Example is deemed to be the priority date of the derivative beneficiary. Thereby, he gets a jump-start of about 6 years, and is placed quite ahead in line in determining the visa availability for him. So, as and when a family-based 2nd preference visa number becomes available for an unmarried son of a lawful permanent resident, with a priority date of January 2, 1998, he could begin his immigrant visa process, obtain an immigrant visa, and enter the U.S. as an immigrant. In other words, by having a much earlier priority date, he would not have to wait for a long time subsequent to his father's petition on his behalf.

CSPA §§ 4 and 5

Sections 4 and 5 are more or less identical. One (§ 4) deals with the use of age on a parent's application filing date in determining eligibility for asylum; the other (§ 5) deals with the same issue with respect to refugees. Both extend a similar protection to children of asylees or refugees, who were under 21 years of age on the date the parent applied for asylum or refugee status. Such children continue to be classified as children, even if they attained 21 years of age after the application for asylum or refugee status was filed but while it was pending.

CSPA § 6

Section 6 of the CSPA deals with the treatment of visa classification petitions for unmarried sons and daughters of naturalized U.S. citizens, and it accomplishes this task by adding subsection (k) to INA § 204. It provides that a family-sponsored 2nd preference petition, initially filed by a permanent resident parent for an alien unmarried son or daughter, if such parent subsequently becomes a naturalized citizen of the United States, shall be converted to a family-sponsored 1st preference petition as an unmarried son or daughter of a U.S. citizen.

There is an exception to this rule of automatic conversion, which applies if the son or daughter files a written statement with the Attorney General that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). See the newly added § 204(k)(2). Where such an election has been made, this exception mandates that any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if the parent's naturalization had not taken place.

Further, regardless of whether a petition is or is not converted under this provision, if such married son or daughter was assigned a second preference priority date before the parent's naturalization, he or she may continue to maintain that priority date. There is one more clarification that the treatment prescribed in § 6 (or § 204(k)) is applicable to a petition if it is properly filed, regardless of whether it was approved or not before the parent's naturalization.

CSPA §§ 7 and 8

Section 7 of the CSPA adds a word of caution or clarification by adding a clause (iii) to INA § 204(a)(1)(D), which deals with battered immigrant children. It provides that nothing in the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under § 204(a)(1)(D).
Section 8 contains a statement about the effective date of the CSPA amendments, and declares that the amendments are effective immediately and applicable to any alien who is a derivative beneficiary or any other beneficiary of: (1) an immigrant petition approved before such date [August 6, 2002] but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status pursuant to such approved petition; (2) an immigrant petition pending on or after such date; or (3) an application for adjustment of status pending before the Department of Justice or an immigrant visa application pending before the Department of State on or after such date.

Finally, this brief analysis represents a considered legal opinion* of Pravinchandra J. Patel, Esq.


About The Author

Pravinchandra J. Patel, Esq can be reached at 1554 Sherwood Drive, East Meadow, New York 11554; (516) 565-2665; email: LRBPJP@aol.com. For over two decades, he has authored and regularly updated source material for fellow immigration attorneys through his books, including the seminal resource, Patel’s Citations of Administrative Decisions under Immigration and Nationality Laws. The opinion expressed in this article is not intended to provide guidance in any specific case or to any individual. Rather, it is intended for general information and preliminary guidance, and is subject to change in the future, if necessary, to reflect any subsequent contrary guidance provided by the INS or DOS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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