In August 2002, President Bush signed into law an ameliorative immigration statute known as the Child Status Protection Act (CSPA). Congress, in writing the law, intended to alleviate the problems that many immigrants were facing known as age-out. Generally, immigrants can include their non-U.S. citizen children in their permanent residency applications. Immigration law defines children as those unmarried sons and daughters under the age of 21. Sons and daughters who turn 21 while the permanent residency process is ongoing “age out” and would not be able to obtain permanent residency with their parents. The impact is dramatic since the permanent residency process takes several years. Many parents saw their children who were well under the age of 21 when the process started, age out.
Congress recognized that INS delays in processing were splintering families. As a remedy, Congress passed CSPA—a confusing law whose interpretation is still being worked out by immigration advocates, the INS, and the United States Department of State. Although the act is meant to be ameliorative and confer benefits, the INS and the Department of State have already begun a restrictive approach in their interpretation of the law. The language of the law is confusing in some key areas which will undoubtedly require litigation in the federal courts as to the correct interpretation.
CSPA is the least ambiguous in regards to benefits conferred to the children of U.S. citizens. The INS has recognized that under CSPA, the children of U.S. citizens who are petitioned for permanent residency before they reach the age of 21 shall be considered children for permanent residency and not age out. In effect, the children’s age is frozen at under 21 for obtaining permanent residency. This includes the children of permanent residents who later become U.S. citizens, as long as the sponsoring parent became a U.S. citizen before the child turned 21. The INS has instructed its field offices and service centers to honor these types of applications.
Children deriving legal permanent residence through an immigrant petition filed on behalf of their parents are treated entirely differently under CSPA. These are the children of parents who are being sponsored through an employment based immigrant petition, family based immigrant petition, or diversity (green card lotto). These children’s aging out is determined by applying a complex formula. Within one year of the parent’s priority date becoming current, the child must apply for permanent residency. If the child is in the U.S., this is called adjustment of status; if overseas, the application is called consular processing. Under CSPA, the child’s age is subtracted by the amount of time the parent’s immigrant petition has been pending with INS to determine the child’s age for applying for permanent residency. For example, Chester child is 22 today and his family is ready to file for adjustment of status. If the INS took over 2 years to process the parent’s immigrant visa petition (I-130 or I-140), Chester would be considered under 21 and could be included in his parent’s application.
The INS defined pending application to mean the time it took the INS to adjudicate an I-130 or I-140 petition and not the time the parents waited for a priority date to become current. The INS has also instructed its branch offices to only apply the formula to those children whose parents’ adjustment of status applications are still pending or haven’t yet been filed. This means that the children of parents who have already obtained permanent residency will not be able to benefit under CSPA. Those who can benefit must apply within one year of the priority date becoming current.
The definition of “application” is straightforward in the INS context; it is the day the INS receives the adjustment of status application and filing fees. The Department of State’s interpretation is however, much harsher. The State Department has instructed all its Consulates that the application is not made until the Packet 4 Consular interview is conducted. This is the last stage in what is viewed as the consular processing application. The process is begun with the filing of the fees with the National Visa Center. Most of the high volume consulates in countries such as the Philippines and China will not get to the interview until up to one year after the priority date becames current. If this definition of application continues, children in high volume consulates will be unfairly prejudiced because their applications will be deemed to be too late. The State Department has indicated that its instructions are preliminary and that it may change its view.
The State Department has also stated that children who were over 21 prior to August 6, 2002 (the date of CSPA’s enactment) would not be able to benefit under CSPA. This is in direct violation of Congressional intent and the language of the statute. The statute clearly states that children of parent’s whose consular processing applications are pending benefit under CSPA. Unless the State Department changes this interpretation, litigation in the federal courts may be required.
Both the INS and the State Department have advised that they will soon issue additional guidance on the other, more complicated provisions of CSPA. These include age outs of the children of asylum applicants. The CSPA grants age out protection to the children of asylum applicants and refuges. The CSPA also allows for children who, after applying the formula above, may be converted to another category and retain their parent’s priority date. But the practical application, manner of conversion, and process are unclear. Immigration advocates will be closely monitoring the INS and the State Department for their policies on applying the CSPA and whether to take the government to court on its application of the law.