By Attorneys Robert L. Reeves and Jeremiah Johnson
Last year Reeves & Associates published an article, “Possible Relief For Aged-Out Children Under Child Status Protection Act (CSPA),” discussing a scenario where children who “aged-out” retain their parent’s original priority date. Recently the Immigration Service agreed with Reeves & Associates’ interpretation of the statute and granted a visa petition with an original priority date to a child who had aged-out. Although the Service had correctly recognized that this family was eligible for relief under CSPA, the Immigration Service has yet to fully embrace this important section of the law as a matter of policy. As such, many families may be wrongly denied relief under CSPA and remain separated despite Congressional intent to reunite families.
Congress passed the CSPA on August 6, 2002 to protect the children of immigrants who turn twenty-one years old (“age-out”) while they wait for immigrant visas. Under the better known section of CSPA, the child may use a complex formula that allows for the amount of time an immigrant visa was processing to be subtracted from the child’s age on the date the green card application was filed. However, many children still aged-out despite the formula and families suffered as a result of separation from loved ones.
Fortunately there is relief. Under the Section 3 of CSPA, codified at Section 203(h)(3) of the Immigration and Nationality Act, children who age-out – even after applying the formula – can convert to the appropriate immigrant category and retain their parent’s original priority date. Specifically, Section 203(h)(3) states that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date upon receipt of the original petition.” So under this provision of the law, a child who aged-out can now recapture the original priority date and reunite with their family. Moreover, if the child who aged-out is in the United States, he or she should be able to apply for a green card if otherwise eligible.
Although the Immigration Service has already granted some visa petitions with the original priority date pursuant to this provision of CSPA, there appears to be little uniform policy from the Service as a whole. As such, Immigration Officers (and even Immigration Judges) may not fully understand this complex area of the law, leading to arbitrary or inconsistent decisions. The provisions of CSPA are complex, and attempts to recapture the priority date should be well presented. Parents whose children have aged-out, or the children themselves should seek the advice of competent legal counsel to determine if this section of CSPA applies to them. It will take competent counsel to compel the Immigration Service to honor the immigration law and grant the rights established by CSPA so that families are kept together