Utilizing The Child Status Protection Act: A Recent Case Success Story
The Child
Status Protection Act (CSPA) amends the Immigration and Nationality Act (INA)
by permitting certain aliens to retain classification as a "child" even if they
have reached the age of 21. In most situations when a "child" turns 21, they
lose their eligibility to immigrate to the U.S. as a child. Since its enactment in 2002, there has
been substantial debate over the CSPA's interpretation. There have been conflicts
with existing laws, regulations and practices, as well as inconsistent
enforcement by government officers. In fact, to this day, the CSPA continues to
confuse immigration officials as well as immigrants looking to utilize the CSPA
to their strongest advantage. It is extremely important for those trying to
determine if the CSPA applies to their case to contact an experienced
immigration law practitioner.
The CSPA employs
calculations that must be applied to individual cases in order to determine if an
individual over the age of 21, can still be classified as a child. All the
calculations are not discussed in this article, but two common examples follow.
The first example
involves children of U.S. Citizens. Here, the calculation is straight forward.
The CSPA locks in the child's age on the same date that the U.S. Citizen parent
filed an I-130 Petition. Thus, if the U.S. Citizen parent files an I-130 Petition
for the child before they turn 21, and that child remains unmarried, that child
will be treated as a child under 21 years old regardless of the child's age when
they adjust their status or immigrate to the United States.
In cases involving
derivative beneficiary children of employment based visa petitions abroad the
calculation is very complex. In these types of cases, there are 4 steps that
must be followed to determine if the CSPA applies. First, the total number of
days that the parent's I-140 Petition pended is calculated. For example, if the
I-140 was filed on November 10, 2008, and approved on July 1, 2009, the total number of days it pended is 235 days. 235
days is then subtracted from the child's age on the date that a visa becomes
available to the parent.
Second, a visa becomes
available to the parent when the priority date of the I-140 is "current" on the
Department of State's monthly Visa Bulletin. The DOS' monthly Visa Bulletin can
be found at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
Third, once the date
that the visa became available to the parent has been determined, the child's
age on that same date must also be calculated. Once the age of the child has
been determined, the number of days the I-140 pended for (235) is subtracted
from that child's age on the day the visa became available to the parent. For
example, if the child was 21 years and 100 days old on July
1, 2009, when the above visa
became available to the parent, 235 days is subtracted from the child's age on July
1, 2009. The calculation appears as follows: (235 days)
are subtracted from (21 yrs and 100 days) which equals the new age of (20 yrs 7
months and 16 days). Thus, the child's CSPA age, is less than 21 years old. Unfortunately,
this age is not locked in yet as there is a final step that must occur.
Finally, for this <21
age to lock in, it must be established that the child "sought to acquire the
status of an alien lawfully admitted for permanent residence" within 1 year of
a visa becoming available to the parent. If this can be established, then the
child is eligible for immigration benefits. The best way to satisfy this
requirement is for the parent to file an I-824 Application on an Approved
Application for the derivative child abroad within 1 year of the visa becoming
available to the parent. It is advisable for the parent to file this I-824
Application for the child concurrently with his or her adjustment of status
application.
Immigration
Law Associates was recently able to convince the USCIS to overturn a denied
I-485 adjustment of status case by applying the CSPA. The case involved an
individual who's aunt had originally filed an I-130 immigrant visa petition for
this child's mother back in 1995. The mother eventually obtained her permanent
residence after the child had turned 21 years old. Thus, he was no longer
considered a child and not eligible to adjust his status. Immigration Law
Associates was able to convince the USCIS to apply the CSPA to the child's case
to retain his mother's original priority date of 1995 and to automatically
convert the child's status to the category of unmarried son of a legal
permanent resident. The child obtained his permanent residence card and is now
living and working in the United States. As mentioned above, the CSPA is an
extremely complex area of the law and if certain steps are not taken it could
have severe effects on one's ability to immigrate to the US. As
such, it is extremely important for those trying to determine if the CSPA
applies to their case to contact an experienced immigration law practitioner.