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Pushing The Envelope With The Child Status Protection Act

by Cyrus D. Mehta

1. Introduction

On August 6, 2002, President Bush signed the Child Status Protection Act (CSPA) [Pub. L. No. 107-208] to address the problems of minor children losing their eligibility for immigration benefits upon attaining 21. The CSPA introduces new definitions of who would be considered a “child.”

For instance, Section 2 of the CSPA extends benefits to children of United States citizens under the immediate relative category (spouses, parents and minor children of US citizens). The child’s age will be frozen on the date on which Form I-130 (Petition for Alien Relative) is filed.1 Thus, even if the child turns 21 after that, this child can still qualify under the immediate relative category as a minor child of an US citizen.

Section 3 of the CSPA extends “age out” protection to the children of legal permanent residents. This includes children who have been directly sponsored by their parents under the Family 2A category or who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants.

The age of the non-citizen child is determined on the date on which an immigrant visa becomes available, reduced by the number of days the petition was “pending.” Unlike Section 2, above, this provision triggers only if the non-citizen child has sought to acquire permanent residence within one year of such availability.2

This article will explore two provisions of the CSPA that have been subject to varying interpretations. The first provision that will be explored concerns the effective date of the CSPA and whether it would be able to protect children who turned 21 before CSPA’s enactment on August 6, 2002. The second provision deals with the retention of priority dates, and this article will explore whether it would allow derivative children who have aged out to retain the priority date of the original petition.

2. Effective Date Of The CSPA

There is plenty of debate regarding whether the government has properly interpreted the effective date of the CSPA and its applicability to children who turned 21 prior to August 6, 2002. Does the CSPA apply to derivative children of approved petitions who aged out and did not file immigrant visa applications or adjustment of status applications prior to August 6, 2002? The government says “no.”

The Department of State (DOS) cable dated January 3, 2003 (03 State – 015049)(“DOS Cable”) and the Immigration and Naturalization Service3 memo dated February 14, 2003 (HQADN 70/6.1.1) (“INS Memo”), both indicate that the child should have actually filed an immigrant visa petition at the consulate or applied for adjustment of status in the US prior to August 6, 2002. If a petition was approved before August 6, 2002, and the non-citizen child aged out before that date and either failed to apply for a visa, or applied after aging out, and was refused on the ground, then the CSPA would not apply. If, however, the non-citizen child applied before August 6, 2002, and was only refused under INA Section 221(g),4 CSPA protection might still be available. If the child was refused on grounds other than INA 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.

Thus, under the DOS and INS interpretations, 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 or adjustment of status.

Commentators have criticized the DOS and INS’ restrictive interpretation with regard to the effective date of the CSPA. For instance, Tammy Fox-Isicoff and H. Ronald Klasko in their article “The Child Status Protection Act: Is Your Child Protected?” (September 23, 2003), are of the opinion that CSPA has a rather expansive effective date provision.

Section 8 of the CSPA provides that age-out relief under the legislation took effect upon enactment on August 6, 2002, and applies to:

1. Immigrant petitions that have been approved but where no final determination has yet been made on the beneficiary’s5 application for an immigrant visa or adjustment of status;

2. Immigrant petitions pending before or after the enactment date; and

3. Applications pending before the Department of Justice or Department of State on or after the enactment date.

According to Fox-Isicoff’s and Klasko’s reading of Section 8, the immigrant visa petition or adjustment of status application need not have been pending as of the enactment of the CSPA – August 6, 2002 – to protect the child. Because the first provision above, unlike the second and third, does not require that the application be pending, they argue that the CSPA should apply to the beneficiary or derivative beneficiary of an immigrant petition approved prior to August 6, 2002, so long as the child qualifies under the mathematical formula set forth in Section 3 of the CSPA [INA Section 203(h)(1)(A)] by being below 21 at the time of visa availability6 and the child “seeks to acquire permanent resident status” within one year of such availability.

Take the example of a derivative child of a parent who has been sponsored by a US citizen sibling under the family fourth preference category and who turned 21 before the passage of the CSPA on August 6, 2002. According to the DOS Cable and INS Memo, unless this child had actually applied for an immigrant visa or adjustment of status application before August 6, 2002, he or she could not claim the protection of the CSPA. But this child could not have possibly filed an application if he or she had already turned 21!

Even if this child had filed such an application before turning 21, and upon turning 21, such application were denied, he or she would not have been able to take advantage of the CSPA. The DOS and INS interpretations would only apply to a very limited category of children who had filed applications prior to August 6, 2002, before turning 21, and were fortunate enough to not show up on the radar screen of either the INS or the DOS upon turning 21,7 and then CSPA fortuitously took effect and protected them!

Fox-Isicoff and Klasko thus argue that children who reached the age of 21 before August 6, 2002, should still be able to qualify under the CSPA mathematical formula set forth in INA Section 203(h)(1)(A). However, these children must have been able to apply for adjustment of status or an immigrant visa within one year of visa availability. Fox-Isicoff and Klasko further argue that those who were unable to apply for an immigrant visa or adjustment of status within one year of the effective date of the CSPA - where their failure to file within one year of immigrant visa availability was caused by their inability to do so under the law in existence on the date that they turned 21 - should be granted a one year period from the effective date of the CSPA.

Unfortunately, the one-year anniversary of the CSPA was August 6, 2003, which has gone. Thus, if the DOJ or USCIS were to alter their interpretation of the effective date in line with Fox-Isicoff and Klasko’s interpretation of Section 8, either on their own or through litigation, this writer would suggest a further extension beyond a year for children to file applications if they were unable to do so because of the law in existence prior to CSPA.

Statutory deadlines have been extended by courts in the past. For instance, a federal court in the “late amnesty cases,”8 struck down an INS regulation as inconsistent with statutory language, which prevented applicants from applying before deadline, and extended the deadline for qualified applicants to file for legalization under INA Section 245A.

3. Retention of Priority Date

This article also highlights a very interesting provision of the CSPA, which till now has not been interpreted by the DOS or the USCIS.

Section 3 of the CSPA introduced INA Section 203(h)(3), which states:

“Retention of Priority Date – If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), 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 provision makes reference to subsections (2)(A) and (d) of INA Section 203. INA Section 203(2)(A) refers to children of permanent resident aliens who have been sponsored under the second family preference (2A). Thus, if the child is determined to be 21 years or older when the visa number becomes available, his or her petition will automatically move from the 2A category to the family-based second preference category for sons and daughters of permanent residents (2B). INA Section 203(h)(3) thus codifies the former practice of the INS, now USCIS, of converting a 2A petition to a 2B petition when the child turns 21 years old. The priority date of the 2A petition is retained for the 2B petition.

The most intriguing aspect, though, is this provision’s reference to INA Section 203(d), which relates to derivative children of beneficiaries of family-based or employment-based petitions. If a derivative child is found to be 21 years of age, INA Section 203(h)(3) indicates that the child’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.” Although no petition is filed for a derivative child, this provision interestingly provides for the automatic conversion to the “appropriate category.”9

Take, for example, the child of a sibling of a US citizen who was sponsored under the family-based fourth preference (F-4) category. The US citizen brother or sister filed an I-130 petition for the sibling parent overseas, and not for the derivative child. After the passage of many years (usually, over 10 years for an F-4 petition), the sibling parent obtains permanent residence upon the visa becoming available. The child may not qualify because he or she was 21 or older at the time of visa availability. However, the parent may file a separate family 2B petition on behalf of the son or daughter upon acquiring permanent residence.

A literal reading of INA Section 203(h)(3) suggests that the child should automatically be able to fall into the 2B category, which would carry the priority date of the original F-4 petition that the US citizen sibling filed on behalf of the parent. The provision does not require the filing of a separate 2B petition. To date, we have seen no interpretation on this provision.

Until such an interpretation is issued, the parent who chooses to file a 2B petition for the son or daughter should invoke INA Section 203(h)(3)’s beneficial language that at least allows for the retention of the priority date of the original F-4 petition. In the event that the USCIS does not accept this interpretation, it would provide a basis for the petitioner to litigate this issue in federal court.

4. Conclusion

While zealous advocacy in obtaining an expansive interpretation of the CSPA is essential, practitioners may ultimately have to resort to litigation in order to ensure that the CSPA protects the broadest group of beneficiaries. It is hoped that this article and others would provide food for thought to those lawyers who wish to litigate these issues on behalf of their clients.

Related articles:

New Interpretations On The Child Status Protection Act

An Analysis Of The Child Status Protection Act

1Codified at Section 201(f) of the Immigration and Nationality Act (INA).

2Codified at INA Section 203(h)(1)(A).

3One of the successor agencies of the Immigration and Naturalization Service (INS) in the Department of Homeland Security that administers immigration benefits is the United States Citizenship and Immigrant Services (USCIS). The article will refer interchangeably to INS and USCIS.

4A person is refused a visa under INA Section 221(g) when his or her visa cannot be approved unless additional information is submitted.

5Interestingly, the CSPA refers to the term “beneficiary” as a “derivative beneficiary or any other beneficiary” of an immigrant visa petition.

6A child’s age should be measured as of the first day of the month in which the priority date on the visa petition becomes current.

7It is ironical that an applicant who was honest enough to withdraw the application after turning 21 would not be able to claim protection under the CSPA after it got passed on August 6, 2002.

8See Catholic Social Service, Inc. v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988), aff’d sub nom, Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), vacated and remanded on jurisdictional grounds sub nom, Reno v. Catholic Social Services, 113 S.Ct. 2485 (1993).

9INA Section 203(h)(2) defines a “petition” with respect to an alien child who is a derivative beneficiary under subsection (d), as a petition filed under Section 204 for classification of the alien’s parent under subsection (a), (b) or (c).

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

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

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