By Attorneys Robert L. Reeves & Joseph I. Elias
It has now been almost eight years since Congress passed the Child Status Protection Act (CSPA) to provide much needed immigration relief for families. One of the best-known provisions of CSPA provides a formula that amends how immigration law defines, “child.” Before CSPA, a child was defined as the unmarried son or daughter under the age of 21. This meant children who reached the age of 21 before obtaining an immigrant visa or adjusting to permanent resident status were no longer eligible to get the green card with the rest of their family. These children became known as “age-outs”. Families were forced to separate until these children could find an alternative means to obtaining the green card.
Congress passed CSPA to address this hardship for families and provided a mathematical formula meant to minimize the number of age outs. This formula allows the amount of time an immigrant visa petition was processing with the immigration service to be subtracted from the child’s age on the date their application is filed. This is not to be confused with the amount of time one waits for their priority date to become available. The formula seems complex, but a simple example illustrates how it works. Tessie is petitioned by her U.S. citizen brother in 1982. The immigration service took 1.5 years to process the petition before it approved it. Several years later, Tessie’s priority date becomes current and she submits her application to interview at the Consulate for her immigrant visa. During these years, Tessie’s eldest daughter, Lilabeth turned 21. At the time the application was submitted for the immigrant visa interview, Lilabeth was 21-years-old and one month. Before CSPA, Lilabeth would not be able to join her family because she had aged-out. But with CSPA, Lilabeth gets to deduct 1.5 years from her age, which would make her 19-years-old for immigration purposes. She is now able to immigrate with her family.
But the application of the formula does not always bring the child’s age to under 21. For example, if in the above example, Lilabeth was 23-years-old at the time the interview application was submitted, the formula would only drop her age to 21-years old. She has still aged-out.
Congress also provided relief for this situation in CSPA by amending the Immigration Act and adding section 203(h)(3). This section states that any children who still age-out after the formula is applied, automatically convert to the F-2B visa category and retain their parents’ priority date. This retention of the priority date is an important provision.
But the Immigration Service has refused to apply this section of the law and limited its provisions to a very narrow group of immigrants. This has prompted Reeves & Associates to file a class action lawsuit in Federal Court on behalf of children worldwide affected by Section 203(h)(3). Reeves & Associates is currently presenting its case before the 9th Circuit Court of Appeals explaining how Congress clearly intended to provide protection to all children affected by long immigration delays.
Congress intended to provide a quick solution and remove, or significantly reduce, waiting times for children. Children entitled to the protections of 203(h)(3) should not have to wait any longer for a right granted to them almost eight years ago. But, the Immigration Service is ignoring the intent and will of Congress. This has forced us to seek redress in the Federal Courts on behalf of all children who are entitled to this right. We expect the matter to be successfully resolved before the end of the year with a court order allowing the many stranded children to finally be reunited with their families as Congress intended.