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New Interpretations On The Child Status Protection Act (CSPA)

by Cyrus D. Mehta

Since my last article, "Analysis of the Child Status Protection Act - Updated (October 7, 2002)," both the Department of State (DOS) and the Immigration and Naturalization (INS), now known as the Bureau of Citizenship and Immigration Services (BCIS), have each issued guidance further clarifying some of the issues that have arisen as a result of the complex provisions in the CSPA.

The DOS issued its Cable on January 3, 2003. Subsequently, Johnny N. Williams of the INS issued a Memo dated February 14, 2003.

Both the memos clarify that the CSPA does not have retroactive application, except for very narrow situations.

The CSPA would clearly apply if a petition was filed after its date of enactment, August 6, 2002.

The CSPA would also clearly apply with respect to a petition filed before August 6, 2002, and was still pending (that is not yet approved) on that date.

In the case of a petition approved before August 6, 2002, Section 8 states that the CSPA would apply so long so long as a final determination had not been made on the application before that date.

It is the third prong that has caused a lot of confusion, which the DOS cable has now clarified. The cable states that the CSPA would not apply to beneficiaries of petitions that had been approved prior to August 6, 2002, unless the beneficiary actually filed an immigrant visa application before that date and no final determination has been made on the application.

Thus, the cable continues, if a petition was approved before August 6, 2002, and the alien aged out before that date and either failed to apply for a visa, or applied after aging out, and was refused on that ground, then the CSPA would not apply. If, however, the alien applied before August 6, 2002, and was only refused under Section 221(g), CSPA protection might still be available. If the alien was refused on grounds other than Section 221(g), and that ground has been overcome or waived, then the case should be submitted to the visa office for an advisory opinion. A Section 221(g) denial indicates that the alien’s visa cannot be approved unless additional information is submitted to the consulate.

Thus, under the revised DOS interpretation, the CSPA will not apply in the case of a petition approved before August 6, 2002, unless either: (a) the alien child aged out on or after August 6, 2002, or (b) the alien aged out before August 6, 2002, but, prior to aging out, had applied for an immigrant visa and was refused under Section 221(g).

In determining whether an alien aged out on or after August 6, 2002, the DOS cable reminds consul officers to keep in mind the special 45-day Patriot Act rules. Under those rules, if the alien is the beneficiary of a petition filed before September 11, 2001, the alien remains eligible for child status for 45 days after turning 21. The DOS cable provides the following example: An alien who turned 21 on August 5, 2002, but who was the beneficiary of a petition filed before September 11, 2001, would not actually age out until 45 days after the alien’s 21st birthday, i.e. on September 19, 2002. Therefore, even though the alien in this example turned 21 before the CSPA went into effect on August 6, 2002, the alien did not age out until after that date, and therefore the CSPA would apply to that alien’s case, regardless of whether or not the alien had filed an immigrant visa application before August 6, 2002.

The DOS cable also reminds consular officers that determining whether the alien aged out before or after August 6, 2002, and whether the alien applied for a visa before August 6, 2002, are only relevant if the petition was approved before August 6, 2002. If the petition was approved on or after August 6, 2002, then the CSPA may be applied to the case, even if the alien aged out before August 6, 2002, or even if the alien did not apply for a visa before August 6, 2002.

The INS memo further confirms that the provisions of the CSPA are not retroactive and will only benefit an alien who aged out on or after August 6, 2002. The INS memo deals with situations where the aliens claiming CSPA protection is in the United States and applied for adjustment of status. If the alien aged out prior to August 6, 2002, the only exception allowed is if the petition was filed on or before August 6, 2002, and either: 1) remained pending on August 6, 2002, or; (2) had been approved before August 6, 2002, with an adjustment application filed on or before August 6, 2002, and no final determination made prior to August 6, 2002. “Pending” for purposes of the visa petition means agency action on the petition, including an appeal or motion to reopen filed with the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), if such appeal or motion was filed and/or pending on August 6, 2002. “Final determination” for purposes of the adjustment of application means agency approval or denial issued by the Service or Executive Office for Immigration Review.

The DOS cable initiates another significant change. Under Section 3, which applies to a child who may be the direct beneficiary of a Family-2A petition or the derivative of a parent beneficiary, the child must compare his or her age on the date when the visa becomes available. If the child has turned 21, as of the date of visa availability, the CSPA still allows one to subtract the time it took from the filing of the petition to its approval. If after the subtraction, the child’s age drops below 21, the child is then protected under Section 3 of the CSPA. However, the CSPA requires the child to have “sought to acquire the status of an alien lawfully admitted for permanent residence” within one year of a visa becoming available. In the prior cable, the DOS indicated that this triggering event of seeking to apply for permanent residence would apply when the child filed DS-230, Part II (Packet 4). Several attorneys thought it would make more sense to have an earlier triggering event, as often times the DS-230, Part II or Packet 4, can only be submitted after one year of visa availability and at the time of the visa interview. Under this interpretation, the child claiming CSPA protection would be totally at the mercy of the date the interview is scheduled. Fortunately, the DOS has now addressed this concern and has indicated that the triggering event of establishing whether the alien sought to acquire LPR status is the date on which the applicant submits the completed DS-230 Part I (Packet III) and not Part II. The DS-230, Part I is submitted way in advance of the final interview.

The DOS cable also indicates that in cases involving derivatives, it is not enough that the principal may have taken the required steps within the one-year time frame, but the derivative must have taken those steps himself or herself. Therefore, if the applicant seeking CSPA benefits is a derivative, then the determining factor is the submission of a completed DS-230, Part I, that specifically covers the derivative and not just the principal.

If the principal applicant obtained a green card in the United States, the triggering event for seeking to apply for permanent residence within one year of visa availability would be the date on which the principal, acting on behalf of the derivative, filed the Form I-824 that is used as a signal for the BCIS to notify the US consulate overseas.

What if the visa availability date regresses?

In the event that there is a regression in the priority dates, the child who may have locked into an age below 21 may not have been able to timely apply for a visa or adjustment of status before the retrogression. The INS memo has now clarified the situation. According to the memo, if the visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the Service should retain the Form I-485 and note the visa availability date at the time the Form I-485 was filed. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” using the visa availability date marked on the Form I-485. If, however, an alien has not filed a Form I-485 prior to the visa availability date regressing, and then files a Form I-485 when the visa availability date again becomes current, the alien’s “age” should be determined using the subsequent visa availability date.

The INS Memo provides several useful examples, reproduced below, indicating when the CSPA would or would not apply:

Examples

If a Form I-140 was filed in 1998 when the derivative beneficiary was 20, the priority date became available at that time, the Form I-140 was not adjudicated until today, and a Form I-485 was filed one month after approval, the derivative beneficiary’s “age” for CSPA purposes would be 20 (the beneficiary is 24 today, but the Form I-140 was pending for 4 years). Thus, this derivative beneficiary would be able to retain classification as a child.

If a Form I-140 was filed in 1998 when the derivative beneficiary was 20, the Form I-140 was adjudicated in 2000, a visa number was available at the time of approval, and the Form I-485 was filed today, the derivative beneficiary’s “age” for CSPA purposes would be 20 (the beneficiary was 22 at the time the visa number became available, and the Form I-140 was pending for 2 years). This beneficiary, however, could not benefit from the provisions of the CSPA because (s)he did not file a Form I-1485 within one year of visa availability. Thus, this derivative beneficiary would be unable to retain classification as a child.

If a Form I-130 was filed in 1998 when the derivative beneficiary was 20, the priority date became available at that time, the Form I-130 was not adjudicated until today, and a Form I-485 was filed nine months after petition approval, the derivative beneficiary’s “age” for CSPA purposes would be 20 (the beneficiary is 24 today, but the Form I-130 was pending for 4 years). Thus, the beneficiary would be eligible to retain classification as a child.

If a Form I-130 was filed in 1998 when the derivative beneficiary was 20, the Form I-130 was approved one year later, but the priority date did not become available until 2003, the derivative beneficiary’s “age” for CSPA purposes would be 24 (the beneficiary will be 25 at the time of visa availability, but the Form I-130 was pending for 1 year). Thus, this beneficiary would be unable to retain classification as a child.

If a Form I-140 was filed and denied in 1998 when the derivative beneficiary was 20; the petitioner filed a timely with the AAO which, in 2003, sustains the appeal, remands the matter, and approves the petition (on grounds other than the new availability of the CSPA); the alien files a Form I-1485 six months later, then the derivative beneficiary’s “age” for CSPA purposes would be 20 (the beneficiary is 24 today, but the Form I-140 was pending for 4 years). Thus this beneficiary would be eligible to retain classification as a child.

If a Form I-130 was filed and denied in 1998 when the beneficiary was 20; the petitioner filed a timely motion to reopen; today the motion to reopen is granted (on grounds other than the new availability of the CSPA) and the petition is approved; the alien files a Form I-485 nine months later, then the beneficiary’s “age” for CSPA purposes would be 20 (the beneficiary is 24 today, but the Form I-130 was pending for 4 years). Thus, this beneficiary would be eligible to retain classification as a child.

DOS Cable

INS Memo



About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.


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