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://www.travel.state.gov/visa/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.