RELIEF FOR CHILDREN WHO “AGE OUT” UNDER THE CHILD STATUS PROTECTION ACT

December 14, 2006

RELIEF FOR CHILDREN WHO “AGE OUT” UNDER THE
CHILD STATUS PROTECTION ACT

By Attorneys Robert L. Reeves and Lori B. Schoenberg

On December 5, 2006, the Los Angeles District Office of United States Citizenship and Immigration Services granted the application of a Reeves & Associates’ client to recapture the priority date of an immigrant visa petition previously used by his mother. The Los Angeles District Office based its decision under section 3 of the Child Status Protection Act (CSPA) upon reviewing a comprehensive brief that Reeves & Associates presented on behalf of their client. Reeves & Associates argued that section 3 of CSPA allowed the client to use the old priority date of the immigrant visa petition that was filed for his mother which she used to obtain an immigrant visa. In this case the child had turned twenty-one and “aged out” as a derivative before his mother’s application for permanent residency was approved. CSPA requires that in order to recapture the parent’s priority date the parent must have immigrated or adjusted to permanent resident status on or after August 6, 2002, the effective date of the CSPA.

The decision by the Los Angeles District Office followed two recent rulings, in which the Board of Immigration Appeals (“BIA”) and a federal district court extended immigration benefits under CSPA to more adult children of immigrants, who otherwise would wait years to receive immigrant visas. Congress enacted CSPA to prevent the separation of parents from their children, and to eliminate delays for children of immigrants who turn twenty-one years old while they wait for immigrant visas. Children who are born in other countries can immigrate with their parents to the United States, when visa petitions are filed for the parents under a family-sponsored immigrant visa preference category. However, visas do not become available for family members for many years. During that time, children of immigrants may turn twenty-one years of age, and lose the right to immigrate with their families, simply because of the limited number of visas for them. The waiting period for available visas ranges from several years to more than twenty years.

After Congress passed CSPA, unmarried adult children of immigrants have been allowed to come to the United States under the visa petition filed for their parents, even if they turned twenty-one years old before immigrant visas have become available. Under section 3 of CSPA, unmarried adult children of immigrants who are derivative beneficiaries of petitions filed for their parents will be placed into a different immigrant visa preference category when they turn twenty-one years old. However, they can “retain” the priority date, or filing date, of their parents’ petition, and can apply for immigrant visas under their new immigrant visa category, based upon their parents’ priority date.

In the recent case of In re Garcia, the BIA confirmed that a derivative beneficiary of an approved immigrant visa petition filed for a parent before CSPA’s effective date, August 6, 2002, could retain the priority date for the parent’s petition, and could use that priority date to apply for an immigrant visa under the second-preference immigrant visa category, as an unmarried son or daughter of a lawful permanent resident, if no final determination was made on the derivative beneficiary’s application for lawful permanent resident status before CSPA became effective.

In another case, Rodriguez v. Gonzales, Case No. CV 04-8671 DSF (AJWx) (C.D. Cal. May 31, 2006), a federal district judge in Los Angeles extended CSPA to a beneficiary of an immigrant visa petition approved before CSPA’s effective date, who failed to apply for lawful permanent resident status before Congress passed CSPA, because no immigrant visas were available to him. In that case, the federal district court determined that CSPA applied to beneficiaries of immigrant visa petitions approved before August 6, 2002, if no “final determination” was made on an application for an immigrant visa or adjustment of status by that beneficiary. The district court found that the plain language of CSPA did not require an application for lawful permanent resident status to be filed before August 6, 2002. A broad application to CSPA to beneficiaries of approved petitions who did not have immigrant visas available to them on CSPA’s effective date was found to be consistent with Congress’ intent to promote the reunification of families, and to help children who “age out” of their immigrant visa preference category, and thereby lose their opportunity to immigrate with their families, due to the Government’s delays in processing their immigrant visa cases.

The recent decisions of the Los Angeles District Office, the BIA, and the federal district court expand the benefits of CSPA to more derivative beneficiaries of approved immigrant visa petitions that filed before CSPA’s effective date. Reeves & Associates is now filing a lawsuit in federal court for another client, whose request to retain the priority date for her mother’s immigrant visa petition under CSPA was denied. Reeves & Associates encourages any derivative beneficiaries of immigrant visa petitions that were filed before August 6, 2002, to contact an attorney, to determine whether CSPA benefits would be available to them as well.