By Robert L. Reeves and Katherine L. Curtis
On May 6, 2008, U.S. Citizenship and Immigration Services (“USCIS”) instituted a new policy for cases adjudicated under the Child Status Protection Act (“CSPA”). The new policy benefits certain beneficiaries of visa petitions who turned twenty-one years of age before CSPA became effective on August 6, 2002. However, its interpretation does not reach far enough in addressing those derivative beneficiaries who turned twenty-one while waiting for a visa.
Under prior interpretations of CSPA, USCIS limited the application of CSPA provisions chiefly to those beneficiaries of visa petitions who turned twenty-one on or after August 6, 2002. If the beneficiary turned twenty-one before August 6, 2002, they would only be eligible for CSPA if they could demonstrate that (1) they had a visa petition pending on August 6, 2002 or (2) their visa petition was approved before August 6, 2002, but their application for permanent residence was pending on August 6, 2002.
The new guidance instituted earlier this month states that individuals who turned twenty-one before August 6, 2002 can seek benefits under CSPA even if no application for permanent residence was pending on that date. The guidance applies provided that a final decision was not made on the application for permanent residence before August 6, 2002.
For children of U.S. citizens, the new guidance assures that an individual who is under twenty-one years of age on the date a visa petition is filed (or the date their parent naturalizes or the date their marriage terminates if these events occur after the filing of the visa petition), will remain under twenty-one years of age for CSPA purposes. That age will be frozen regardless of whether they turned twenty-one before or after August 6, 2002, whether their visa petition was decided before August 6, 2002, or how long it took them to apply for permanent residence after the approval of the visa petition, provided that no final decision was made on a permanent resident application for them before August 6, 2002.
All other beneficiaries (including children of lawful permanent residents and derivative beneficiaries of family, employment, and diversity visas) will remain “children” for immigration purposes if they are beneficiaries of a visa petition filed before they turn twenty-one and the priority date attached to the petition becomes current before the alien reaches twenty-one years of age under the calculation of age listed in CSPA. The calculation of age under CSPA is the age of the beneficiary on the date that a visa becomes current subtracted by the amount of days that a visa petition is pending. As is the case with children of U.S. citizens, CSPA applies even if these individuals technically aged-out before the enactment of CSPA, provided that their adjusted age under CSPA is less than twenty-one and that no final decision was made on their permanent resident application before August 6, 2002. Unlike children of U.S. citizens, however, children of lawful permanent residents and derivative beneficiaries must file a permanent resident application within one year of a visa becoming available to them to be eligible for CSPA benefits.
Recognizing that individuals would have been improperly denied CSPA benefits under previous policies, USCIS adopted guidance to assure these people can obtain permanent residence now. USCIS permits individuals to file a motion to reopen now without having to pay fees in order to obtain permanent residence through CSPA if they were previously denied permanent residence solely on the basis of having aged-out. USCIS also allows individuals to file for CSPA relief now if they are immediate relatives or their visas became available on or after August 7, 2001 and they failed to file a permanent resident petition within one year of the availability of that visa because previous USCIS policies prevented them from seeking permanent residence.
While the new guidance provides some expanded benefits to individuals who turn twenty-one while waiting for a visa, it does not address thousands of individuals who were derivative beneficiaries of a visa petition and who had an adjusted age of twenty-one at the time a visa became available to their parents. This office has been fighting to assure that USCIS recognize the separate provision under CSPA that allows “age out” children to be petitioned by their parents and retain the priority date of their parent’s original petition. So far, USCIS has been inconsistent in applying this provision, but our office is working to assure that a uniform application of the law is applied that will benefit these individuals.