THE CHILD STATUS PROTECTION ACT
Cyrus D. Mehta
The plight of children who turn 21 before the INS has adjudicated the requisite petition or application is well known to immigration practitioners. This normally happens due to INS processing delays, and also as a result of consular delays, if the child is overseas.
Minor children may be sponsored for permanent residency directly by their parents, who are either American citizens or lawful permanent residents, or are included as derivatives in their parents’ applications for lawful permanent residence. If they turn 21 before obtaining permanent residency, they can get completely left out or have to move to other preference categories where the visa availability date is unlikely to become current for a very long time.
On August 6, 2002, President Bush signed the Child Status Protection Act (Pub. L. No. 107-208) to address the problem of minor children losing their eligibility for immigration benefits as a result of INS or consular delays. Subsequently, on September 9, 2002, a Department of State (“DOS”) cable extensively interpreting the CSPA (“DOS Cable”) was posted on AILA Infonet. Johnny Williams, Executive Associate Commissioner, Office of Field Operations, Immigration and Naturalization Service (“INS”) also issued a memo on September 20, 2002 (“INS Memo”) and so did Joseph E. Langlois, Director, of Asylum Division, INS, on August 7, 2002 (the “Asylum Memo”). These memos can also be found on AILA Infonet.
The CSPA protects the immediate relative child of a US citizen parent, children of permanent residents as well as children of asylum and refugee applicants. Prior to the enactment of CSPA, the child’s age was determined at the time of adjudicating the grant of permanent residence. The CSPA introduces earlier points of time when the child’s age is determined, after which it does not matter if the child crosses 21. The provisions will be summarized below.
I. AGE-OUT PROTECTION FOR CHILDREN OF US CITIZENS
Section 2 of the CSPA extends benefits to children of US citizens in the immediate relative category (minor children of US citizens) under three specific situations:
First, the child’s age will be determined on the date on which the Form I-130, Petition for Alien Relative is filed, as opposed to when the application is adjudicated for permanent residence.
Second, in the case of a child sponsored under the family-based second preference (2A) (minor children of permanent residents), which subsequently is converted to an immediate relative petition based upon the parent’s naturalization, the child’s eligibility for immediate relative status will be determined based upon the date of his or her parent’s naturalization. The DOS cable provides the following example: If a Lawful Permanent Resident (LPR) files a Form I-130 for a 17 year old son and then naturalizes when the son is 20, the son will remain eligible for a visa as an IR-2, even if the son has attained the age of 22 on the date of visa application.
Third, if the US citizen parent filed a petition for a married son or daughter (under the third preference for married sons and daughters of US citizens) and such son or daughter later divorces, resulting in the original third preference petition later being converted to an immediate relative petition, the child’s eligibility for immediate relative status will be determined based upon his or her age on the date of the divorce. This provision would only be applicable in the case of a married son or daughter who divorces before the age of 21. If the son or daughter is 21 or older on the date his/her marriage terminated, the family third preference will get converted to a family first preference, and this individual will not be able to take advantage of the CSPA.
The DOS Cable also mentions that the K-4 child will be protected under the CSPA only if a separate immediate relative petition (Form I-130) is filed in the child’s name and the child is accompanying the K-3 parent. The K-4 visa is issued to minor children accompanying the K-3 visa holder, who is the spouse of the US citizen. Note, however, that it may not be possible for the US citizen step-parent to file Form I-130 on behalf of a child between the ages of 18 and 21. Under INA Section 101(b)(1), a step-child can only be considered a "child" for immigration purposes if the relationship was formed before the child reached the age of 18. Therefore, when the step relationship is formed after the age of 18, the U.S. step-parent may not be able to sponsor the step-child although he or she could still accompany the natural K-3 parent on a K-4 visa. A child caught in such a gap would presumably be sponsored by the natural parent when he or she becomes a permanent resident.
Once the child’s age is “frozen” under 21 pursuant to the three circumstances described in Section 2, the child will always remain eligible to qualify for permanent residence.
II. AGE-OUT PROTECTION FOR CHILDREN OF PERMANENT RESIDENTS OR WOULD BE PERMANENT RESIDENTS
Section 3 of the CSPA extends “age-out” protection to the children of LPRs. This includes children who have been directly sponsored by their parents under the family 2A preference or who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants.
The age of the alien child is determined on the date on which an immigrant visa number becomes available, reduced by the number of days the petition was “pending.” Unlike Section 2, above, this provision triggers only if the alien child has sought to acquire permanent residence within one year of such availability.
The terms “visa availability,” “pending” and “sought to acquire permanent residence within one year of availability” will be discussed below.
The DOS Cable defines “visa availability” to require both a current priority date and an approved petition. The DOS Visa Bulletin for current priority dates is applicable on the first day of every month. Therefore, the beneficiary’s (or derivative’s) age should be compared to the first date of the month the priority date becomes current, according to the INS Memo. The CSPA requires practitioners to look at past Visa Bulletins going back several months to find out when the visa date became current. These are generally available in past issues of Interpreter Releases or Bender’s Immigration Bulletin.
Since, according to the DOS Cable, the visa availability is predicated both on a current priority date and an approved petition, the date of filing of an employment-based I-140 petition, even if concurrently filed with adjustment applications for the derivative child, may not be able to lock in the derivative child’s age. The child’s age would only be locked at the point of the approval of the I-140 petition (minus the number of days it took for approval), as at present, all the employment-based preference categories are current.
The term “pending” is only applicable from the time the I-130 or I-140 petition is filed to the time it is approved. It does not apply for the duration of time that the petition takes to become current. For example, if the alien child is 21 years and 6 months old on the date the visa number becomes available, but the I-130 petition under the family 2A category was pending for 8 months, the alien child’s age is reduced by 8 months, and thus the child would be considered to be under the age of 21 years at the time of visa number availability under the family 2A category.
If the parent files an I-140 petition under the employment-based first preference “persons of extraordinary ability category,” when the child is under 21, but the INS approves the case after the 8 months and the child at the time of approval is 21 years and 6 months, the child’s age is reduced by 8 months again and is protected by the CSPA.
The DOS Cable generously interprets the term “pending” for DV lottery applicants. DOS has decided to use the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal applicant that his/her application has been selected (congratulatory letter). That period will be subtracted from the derivative alien’s age on the date the visa becomes available to the principal DV applicant. The date the visa becomes available will be the first day on which the DOS determines the principal applicant’s selection number becomes eligible for visa processing.
The applicant need not acquire permanent residence within the year of visa availability but only need to apply for it. In consular processing cases, according to the DOS Cable, one “seeks” permanent residence at the time of application for an immigrant visa. After the INS Service Center approves the I-130 petition, the National Visa Center (NVC) issues DS-230 Part 1, Application for Immigrant Visa and Alien Registration. However, according to the DOS, the triggering event for seeking to apply for permanent residence is at a later stage, which is when Packet 4 or DS-230 II is submitted prior to the interview at the US Consulate. The DOS indicated that this was their position in an AILA–DOS Liaison meeting on October 2, 2002, but that DOS was going to reconsider its position. Surely, it would make more sense to consider an earlier triggering event in order for more children to take advantage of the CSPA.
With respect to children in the US, the INS Memo requires that the beneficiary applied for adjustment of status in order to “seek” permanent residency within one year of visa availability.
Section 3 also provides that if the alien is determined to be 21 years of age or older at the time the visa number becomes available, notwithstanding the age-out protection extended under this section, his or her petition will automatically be converted from the family 2A to the 2B category for sons or daughters of permanent residents. The son or daughter will retain the priority date associated with the original petition.
Unlike immediate relative beneficiaries, whose status is protected under section two, beneficiaries of Family 2A visa petitions, who were under 21 when their visa petitions were filed, can still fall into the family 2B category, adding several years to their wait for permanent residence. If a petition as filed by a permanent resident parent for his or her 18-year-old son in 1998, and the petition was approved after 24 months, the child’s age would be reduced by two years, when the priority date for the (2A) category reaches his priority date. Since this is not likely to happen for more than five years from the date the petition was filed, the child will still be considered over 21, and will have to wait until his priority becomes current in the Family 2B category.
Interestingly, this clause also states that if a derivative child is found to be 21 years of age or older, that child shall retain the original priority date issued upon receipt of the original petition. There appears to be some ambiguity here. No petition is filed for a derivative child, and it is difficult to conceive how it can be converted to another category. 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. If this child does not qualify because of being 21 or over, the parent may file a family 2B petition upon acquiring permanent residence. The priority dates for the family 2B category are backlogged by several years. It would be difficult to use a priority date of the F-4 petition for the new Family 2B petition on behalf of the child as the F-4 petition was the parent’s petition. Unlike a conversion from family 2A to 2B, the parent, who has recently acquired legal permanent resident status, has to file a new family 2B petition for the child. Neither the DOS Cable nor the INS Memo have commented on this provision but it is hoped that the interpretation is expansive to allow the son or daughter to use the F-4 priority date when the parent files the family 2B petition.
III. ASYLUM AND REFUGEE APPLICANTS
Section 4 of the CSPA extends age-out protection to the children of asylum applicants, amending INA § 208(b)(3), to provide that an unmarried alien who seeks to accompany or follow to join a parent granted asylum, and who was under 21 years of age on the date the parent applied for asylum but turned 21 during the pendency of the application, will continue to be classified as a child for purposes of derivative asylum benefits.
Section 5 of the CSPA extends this same protection to the children of aliens granted refugee status.
The Asylum Memo states that the child must be under 21 years of age on the date that his or her parent files the asylum application, Form I-589. There is no requirement that the child has been included as a dependent on the principal applicant’s asylum application at the time of filing, only that the child be included prior to the adjudication. This means that the principal applicant may add to his or her asylum application an unmarried son or daughter who is 21 years of age, but who was 20 at the time the principal applicant filed the asylum application.
According to the Asylum Memo the filing date is defined as the date that the INS receives an application. 8 CFR 103.2(a)(7). The filing date is reflected in RAPS in the “FILED” field of the CSTA screen, according to the Asylum Memo. This should be the same date as the receipt date stamped on the Form I-589, upon receipt by a Service Center. However, in the event that there is a conflict between the filing date in RAPS and the receipt date stamped on the Form I-589, the earliest date should be used as the filing date for purposes of determining whether a dependent was under 21 years of age at the time the principal applicant filed for asylum.
IV. PETITIONS FOR SONS AND DAUGHTERS OF NATURALIZED CITIZENS
Section 6 of the CSPA provides that the family-sponsored (2B) petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a first preference petition for an unmarried son or daughter of a US citizen, unless the son or daughter elect otherwise. Regardless of whether the petition is converted, the son or daughter may retain the priority date on the original petition.
A son or daughter would want to make such an election if the family first preference (adult sons and daughters of US citizens) for his or her country is more backlogged than the 2B preference. For instance, the October 2002 cut-off date under the family 2B preference for Philippines is February 1, 1994 while the cut-off date for this country under the first preference is December 1, 1989. A Filipino child who has turned 21, and is unable to take advantage of the CSPA, could nevertheless elect to remain under family 2B, even if the parent has naturalized, in order to take advantage of a better cut-off date.
At this time, it is not known how this election request to the Attorney General will be made or what formalities will be required.
This provision could apply even if such conversion has occurred because the son or daughter could “have such conversion revoked.” One could argue that regardless of the Effective Date provision (see below), Section 6 of the CSPA is retroactive and the son or daughter waiting in the Family first preference, prior to CSPA’s enactment, could now elect to return to the family 2B preference to gain a greater advantage with the priority date.
V. IMMIGRATION BENEFITS FOR CERTAIN ALIEN CHILDREN NOT AFFECTED.
Section 7 of the CSPA states that no provision shall in any way limit or deny any benefit provided under Section 204(a)(1)(D) of the Immigration and Nationality Act. Section 204(a)(1)(D) provides battered children who have either filed self-petitions or are derivatives to a battered parent’s self-petition with “age-out” protections.
VI. EFFECTIVE DATE
Finally, Section 8 of the new law provides that the age-out relief extended under the legislation took effect upon enactment on August 6, 2002 and applies to: (1) immigrant petitions that have been approved but where no determination has yet been made on the beneficiary’s 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.
The DOS Cable applies the CSPA effective date provisions to three kinds of cases:
The applicability of the effective date of the CSPA to the third category of cases has generated much confusion. The DOS Cable interprets this to mean that an alien whose immigrant visa application was denied prior to August 6 because he or she aged out or was otherwise ineligible cannot benefit from Section 3. However, for this purpose a Section 221(g) denial will not be considered a final determination. A consular officer may deny a case under INA 221(g) if further documentation has been requested or the consular officer wishes to refer the case for an investigation. The DOS Cable goes on to state that beneficiaries (including derivative beneficiaries) of petitions approved prior to August 6, 2002, who never applied for a visa prior to August 6 because they had aged out will receive no benefit from Section 3 and cannot apply afterward in order to receive a benefit.
This interpretation of DOS is questionable. Prior to the CSPA, a child who had “aged out” would not have even bothered to apply for an immigrant visa. But for the CSPA, the 21+ year old child would not have been eligible. If a child who “aged out” applied for the immigrant visa, it could have been considered to be either frivolous or fraudulent application by a consular officer. Worse still, the parent applicant could potentially have even been charged with alien smuggling! Thus, if the parent has not yet received permanent residence at the time of enactment of the CSPA it ought to be possible for the “aged out” child to apply for an immigrant visa even if he or she did not apply prior to the CSPA.
What if more than one year has elapsed since the date of visa availability? It remains to be seen whether the one-year period begins on August 6, 2002, or whether it begin from the date the visa number became current. If DOS alters its interpretation and allows children who never applied prior to CSPA to now apply, it would make more sense to allow the one year period to start from August 6, 2002, at least with respect to visa dates that became available prior to enactment.
If an alien applied for adjustment of status with the INS prior to August 6, 2002, and the application was denied because the child “aged out” but is now potentially protected by the CSPA, one attorney in Seattle, Paul Soreff, successfully argued before an Immigration Judge that there had been no “final determination.” The alien retains his or her right to renew the application in removal proceedings pursuant to 8 C.F.R. 245.2(a)(5).
Section 8 makes clear that the CSPA will only apply where a final determination has not been made, the new law would probably not apply to a child if the parent beneficiary has already received permanent residence prior to the enactment of CSPA.
Fortunately, even the DOS admits that its interpretation regarding the effective date are preliminary interpretations and could change after interagency discussions. Practitioners are advised to press for the most expansive interpretation on behalf of their clients. As the CSPA is ameliorative in nature, any ambiguity should be resolved in favor of the “aged-out” child.
VII. SECTION 424 OF THE USA PATRIOT ACT
The DOS cable instructs that the 45-day protection afforded by Section 424 of the USA Patriot Act will continue to apply to all relevant cases. Where the CSPA is also available to an applicant, the more generous benefit should be applied to the alien’s case.
Section 425 gives age-out protection to an alien whose 21st birthday occurs after September 11, 2001, provided this individual was the beneficiary of a petition or application filed prior to September 11, 2002. This individual shall be considered a child for 45 days after the 21st birthday.
If the CSPA is not applicable in the event that the alien was unable to seek permanent residence within one year of visa availability, one may potentially still take advantage of Section 424 of the USA Patriot Act.
Documents referred to in this article are:
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. He has received an AV rating from Martindale-Hubbell and is also listed in the International Who's Who of Business Lawyers.
The author thanks Robert Gottfried for his invaluable assistance and suggestions.