New Hope for Children
In a post 9/11 world where it seems that it is getting more and more difficult for immigrants to legalize their status in the United States, a new hope for children appears in the Child Status Protection Act. The definition of a child is very important in determining certain immigration benefits. For many years, it was quite common for a child to “age-out” and be unable to adjust his or her status to that of a lawful permanent resident. That is because the immigration laws provide that a person must be under the age of twenty-one to be considered a child. Prior to the Child Status Protection Act, this law was strictly applied. Once a person turned twenty-one, he or she “aged out,” and was no longer considered a child and unable to obtain immigration benefits as a child. Determining whether a person was considered a child was based on the time the application was adjudicated not when the application was initially filed.
Moreover, once a child turned twenty-one, there was no way in which to preserve the person’s status as a child and maintain his or her eligibility for immigration benefits. This held true whether the child was the direct beneficiary of a visa petition or whether the child was a derivative beneficiary on his or her parent’s application. The harsh result was that once a child turned twenty-one, he or she would be automatically moved to a lower preference category, resulting is several years of waiting for a visa to become available, or worse yet, lose his or her beneficiary status altogether and perhaps not having a new petition that could be filed on his or her behalf, rendering him or her completely ineligible for immigration benefits.
Unfortunately, all too often, United States Citizenship & Immigration Services’ (USCIS) backlog delays in processing applications led to children “aging-out” before USCIS completed adjudication. Fortunately, in August 2002, the Child Status Protection Act (CSPA) was enacted. This legislation sought to provide a cushion for children who turned twenty-one while their application or petition is pending as a result of USCIS delays. In these instances, CSPA allowed the person to retain their status as a child for certain immigration benefits, even though he or she turned twenty-one.
Since the enactment of CSPA, USCIS had previously issued two memorandums interpreting the CSPA. Recently, however, USCIS issued a third memorandum changing how the CSPA applies to certain children who “aged-out’’ prior to CSPA being enacted. Significantly, however, it focuses on how persons who were ineligible to file for benefits prior to the CSPA can now file for a new application for permanent residence. Furthermore, this new memorandum provides guidance on how persons previously denied under CSPA can reopen their case. Finally, it provides how persons can protect their status as a child.
CSPA amends the immigration laws for immigrants seeking classification as an immediate relative or for immigrants seeking a classification under one of the preference categories including immigrants who are derivative beneficiaries on their parent’s applications.
Immediate relatives are children of United States citizens who under the age of twenty-one. For this category, CSPA changed the law to fix the age of the child at a specific occurrence or event. If the child is under twenty-one at the time this specific event occurs, the child will not age out. There are three ways to qualify as an immediate relative and avoid aging out under CSPA.
First, if the parent is a US citizen and the child is under twenty-one when the visa petition or a self-petition under Violence Against Women Act is filed, the age of the child is fixed at the time the visa petition is initially filed. Second, if the parent is a lawful permanent resident when the visa petition is filed and later becomes a naturalized citizen of the United States, the age of the child for CSPA will be the age of the child when the parent naturalizes. As long as the child was under twenty-one when the parent naturalized, the child will not age out. Third, if the child is married when the United States citizen parent files the visa petition and later the marriage is legally terminated, the age of the child for CSPA will be the age of the child on the date the marriage was legally terminated. For example, if the marriage is terminated through divorce, then the date the divorce is finalized is the operative date to determine the age of the child under CSPA.
In each of the above three cases, to be considered an immediate relative, all that matters is that the child is under the age of twenty-one on the date that the specific event occurred as specified under CSPA, then the child has not aged out. Additionally, it does not matter when the visa petition is approved or when the child files his or her application for adjustment of status. The child will remain in the immediate relative category indefinitely. Notably, it is of no consequence whether the visa petition was filed on or before the enactment of the CSPA. If the child was under twenty-one under when the specific event occurred, then the child will not age out as long as there was no final decision before August 6, 2002 for adjustment of status based on that visa petition.
Intending immigrants who do no qualify as immediate relatives will most likely fall into one of the preference categories. Family preference categories are divided into four preferences. The first preference is unmarried children over twenty-one of a USC; the second preference are spouses and children of lawful permanent residents; the third preference are married children of USC; and the fourth preference are brothers and sisters of US citizens. Beneficiaries of employment-based petitions are also divided into preference categories depending on skill and education. Within the family and employment preference categories, children may be direct beneficiaries on visa petitions or derivative beneficiaries on petitions filed on behalf of their parents. For certain immigrants seeking to qualify in one of the preference categories, the age of a child is determined based on a formula created under CSPA.
CSPA provides that if a petition is approved and the priority date is reached before the child’s twenty-first birthday, then the child has one year to file an application for permanent residence from the time the priority date is reached. However, if the child has already turned twenty-one once the priority date is reached, then the following calculation must be completed. Figure out the age of the child on the date the priority date is reached, if the petition was already approved, or the date the petition is approved if the priority was reached before the petition was approved. From that age, subtract the number of days the petition was pending before the Service. To determine how long the case was pending, take the difference between the receipt date on the application and the approval date. If after the calculation, the child is under the age of twenty-one, the child has one year to file an application for permanent residence.
For derivative beneficiaries of employment based petitions, the number of days that a petition is pending is calculated from the date the I-140 visa petition was filed, not the priority date which is based on when the alien labor certification was filed.
If it is calculated that a derivative beneficiary either of a family or employment-based cases is under the age of twenty-one under CSPA, then the beneficiary must make an application for permanent residence within one year of the visa becoming available. This can be done by filing an adjustment of status application, filing for an immigrant visa or filing an I-824 application to remain covered under CSPA.
Significantly, a child may continue to benefit under CSPA as long as the child “sought to acquire” permanent residence. An I-824 application that was denied because the parent- principal beneficiary’s application for adjustment of status had not yet been approved is evidence that a child sought to acquire permanent residence.
For those individuals who were denied immigration benefits because they “aged out,” they may now be eligible to file an application for permanent residence. A person qualifies to file a motion to reopen or reconsider his or her case without paying the filing fee if his or her petition was approved before August 6, 2002 and he or she filed an application for permanent residence after August 6, 2002, and 1) under CSPA, the person is considered to be under the age of twenty-one, 2) the person sought to file for permanent residence within one year of the visa becoming available and 3) the sole reason for the denial was that he or she aged out.
For those individuals who did not file for permanent residence on or after August 7, 2001 and qualified under CSPA and did not apply for permanent residence but for the policy that was in place may now apply for permanent residence to take advantage of this new interpretation.
CSPA applies to immigrant visas and covers only those categories expressly stated in the statute. CSPA does not apply to nonimmigrant visas.