When
President Bush signed into law The Child Status Protection Act (CSPA) on August
6, 2002, it was evident that the Act sought to avoid penalizing children for
U.S. Citizenship & Immigration Services (USCIS) [formerly known as INS]
delays. The CSPA amends the Immigration
& Nationality Act (INA) by permitting certain aliens to retain
classification as a “child” under the Act, even if he or she has reached the
age of 21. However, the CSPA provisions were so ambiguous that USCIS officials
and American consular officers had difficulties in interpreting its language
and sense. The Department of State (DOS), which interprets matter of law for
American consular officers, then provided guidelines and clarifications though
several cables to consular officers to enable the proper applicability of
CSPA. USCIS also issued instructions to
its field officers through several memorandums clarifying the applicability and
implementation of CSPA.
From
the time CSPA was enacted until today, we have been continuously researching
and reviewing the extent and nature of the implications, taking into account
the DOS and USCIS cables and memorandums as well as the decisions of the Board
of Immigration Appeals (BIA) and decisions rendered by the courts. We are now
happy to provide our following analysis.
Does
CSPA apply?
Step One
The
first step is to make the determination as to whether CSPA applies as stated
above.
The
initial interpretation and memorandums with regard to the applications of CSPA,
provided that CSPA applies only to the petitions approved before August 6, 2002
and in limited number of cases to the petitions approved between August 6, 2001
and August 5, 2002. Later, this rule was changed and presently, CSPA applies to
the petitions approved any time before or after August 6, 2002.
Step Two
If
CSPA applies under the abovementioned guidelines, the next step would determine
whether a child, who would have previously lost benefits due to aging-out, is
able to receive benefits. The first part of the analysis is determining the
date on which the child’s age is “frozen.”
Firstly,
ascertain when immigrant visa numbers became available. The date that a visa
number becomes available is the first day of the month that the Department of
State (DOS) Visa Bulletin says that the priority date has been reached. If upon approval of the Form I-130 petition,
a visa number is already available according to the DOS Visa Bulletin, the date
that a visa number becomes available is the approval date of the Form I-130.
When
the visa number becomes available, we can commence the exercise to freeze the
child’s age by deducting the time taken by USCIS for approval of the visa
petition from the age of the child. The time deducted from the age of the child
is the difference between the priority date and the date on which petition was
approved. If under this formula, the child’s age is under 21, it will be frozen
at that point. The child’s aging out after that “frozen” date will not affect
eligibility to obtain immigration benefits.
With
regard to the children under the preference categories, their age for CSPA
purpose is calculated by taking the age of the child on the date the visa
became available and subtracting the time taken by the USCIS to adjudicate the
petition.
Step
Three
The
child’s age – determined by the first two steps described above – will remain
frozen only if the beneficiary has sought to acquire the status of an alien
admitted for permanent residence within one year of the visa availability. For
a child beneficiary who is obtaining his visa at a U.S. Consulate abroad, this
requirement will be satisfied by the submission of a completed Form DS-230 Part
I to the consular office where the visa application would be processed or the
National Visa Center (NVC). In the cases in which the principal adjusted status
in the U.S.
and the derivative is applying for a visa abroad, the third step is satisfied
by the filing of Form I-824 by the principal applicant. For a child beneficiary
who is adjusting his/her status in the U.S. , the filing of Form I-485
satisfies the third step. However, it is important that the third step has to
be completed within one year of the visa availability.
The
BIA decision in December 2004, has provided a broader interpretation of the
phrase “sought to acquire” Lawful Permanent Resident (LPR) status to include
actions other than simply filing Forms DS-230 Part I, I-824 or I-485. The BIA
found that seeking the assistance of an attorney within the one-year window to
prepare the application for adjustment of status satisfied the requirement. The
BIA found that the statutory language “sought to acquire” is broader than
“filed” and includes acts that “try to acquire or gain” or “make an attempt to
get or obtain.” However, this decision was not implemented by the concerned
authorities and CSPA requests were denied in most of the cases for
noncompliance of the one-year rule. The good news is that based upon
representations made to the DOS, DOS has rendered Advisory opinions in certain
cases where the visa fee for the child, was paid to the NVC within one year
from the date when the visa number became available for the first time and, in
some other situations, for reasons warranting such decision. It should be noted
that the DOS has not rendered any memorandum or policy decision on this subject
to the consular officers. Therefore, in such cases, we have to approach the DOS
for an Advisory opinion.
Child of Adjustee in the United
States
The
alien child applying for his/her visa abroad as a derivative on the basis of
the parent’s adjustment of status is also required to show that he/she sought
to acquire permanent resident status within one year of visa availability.
Filing of Form I-824 by the parent within one year of visa availability would
suffice for the purpose of satisfying this requirement.
In
Part II of this article, we will discuss about seeking the old priority date
(of the parent’s petition) for the children who aged out and did not qualify
under CSPA. In recent court decisions, it has been held that when the green
card holder parent files the Form I-130 petition on behalf of such child, he or
she should be given the old priority date of the petition under which the parent
was granted immigrant visa.
…to be continued
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