Child Status Protection Act (CSPA) References: –PL 107-208, effective 08/06/2002 –INA 101(b)(1), 203(d) & 203(h) –AFM 21.2(e) –April 30, 2008 memo from.

Child Status Protection Act (CSPA)

• References:– PL 107-208, effective 08/06/2002– INA 101(b)(1), 203(d) & 203(h)– AFM 21.2(e)– April 30, 2008 memo from Michael Aytes

DISCLAIMER

• This presentation is intended solely for information and guidance related to determining qualification under the Child Status protection Act (CSPA). It, in of itself, should not be considered final authority on the subject.

Processing Age Out Dependents

• Due to the definition of “child,” an applicant was precluded from adjustment of status if the applicant reached the age of 21 years.

• This previous definition required the expedited processing of age out dependents.

• However, the amendments made to the Act by the Child Status Protection Act, section have changed the way we determine whether the alien qualifies a derivative “child” under INA 203(d).

CSPA

• On August 6, 2002, President Bush signed legislation that addressed the problem of minor children losing their eligibility for certain immigration benefits as a result of processing delays.

What does CSPA do?

• The CSPA amends the Immigration and Nationality Act by permitting certain aliens to remain a “child” for immigration purposes even after reaching the age of 21.

Child Status Protection Act

• Public Law 107-208 amended the INA and created section 203(h) in the INA. This provision provides a new set of rules for determining whether certain aliens under 203(d) satisfy the age requirement as children under 101(b)(1) of the INA.

203(d) of the INA

• Section 203(d) of the Immigration and Nationality Act states, in pertinent part:

A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

203(h) of the INA

• The law states that for purposes of section 203(d), a determination of whether an alien satisfies the age requirement of section 101(b)(1) shall be made by using-

• the age of the alien on the date that the visa becomes available…minus the number of days the petition was

pending … but only if the alien sought to acquire lawful permanent residence status within one year.

Who benefits from CSPA?

• Immediate relatives

• Direct beneficiaries of family based preference petitions

• Derivative beneficiaries of family and employment based preference petitions

• DV applicants

• Asylee and Refugee derivatives

Who does not benefit from CSPA?

• Non-Immigrant visa applicants

• NACARA / HRIFA applicants

• Family Unity Applicants

• Special Immigrant Juveniles

Ineligible for CSPA

• There is no legal remedy for a derivative applicant who is not CSPA eligible to adjust status after the alien’s 21st birthday.

• Matter of Hernandez-Puente, 20 I & N Dec. 335 prohibits the service from adjusting the status of a derivative child under section 245 once the alien reaches the age of 21 years. (The Service cannot nunc-pro-tunc age outs.)

• Even if we have told the applicant that he or she is CSPA eligible, if that determination was incorrect, the CSPA provision cannot be applied.

Petition Initially Filed as Immediate Relative (IR) Child

• If the alien is seeking to adjust status on the basis of being the beneficiary of an approved petition for classification as an IR and the petition was initially filed for classification as an IR, then the alien’s age for CSPA purposes is the age of the alien on the date the petition was filed. If the alien was under the age of 21 when the IR petition was filed, the alien will not age out.

Petition Initially Filed as Child of a Lawful permanent Resident

• Alien to adjust status as an IR Child

• Petition originally filed as a family preference (Parents were LPRs at filing)

• Parent naturalizes, petition converts to IR

• For CSPA purposes, alien’s age is his/her age on the date the parent becomes a US Citizen.

• If under 21, alien will not age out.

Petition Initially filed as Married Son or Daughter of a USC

• Alien to adjust status as an IR Child

• Petition originally filed as married son or daughter of US citizen

• Marriage is legally terminated

• For CSPS purposes, alien’s age is his/her age on the date of marriage termination.

• If under 21, alien will not age out.

Adjustment under a Preference Category

• If the petition is approved and the priority date becomes current before the alien’s CSPA age reaches 21, then a one-year period begins during which the alien must apply for permanent residence in order for CSPA coverage to continue.

• It does not matter if the child aged out before or after the enactment date of CSPA, so long as the petition is filed before the child reaches 21.

CSPA Age Formula

• Determine the age of the alien on the date that a visa number becomes available.

• Subtract the number of days the petition was pending from alien’s age in step the above.

• This is the alien beneficiary’s CSPA age.• Must apply for permanent residence or be

the beneficiary of an I-824 within one year of date the visa becomes.

Direct Beneficiaries of Family-Based Preference Petitions

• In the case of a petition where adjustment is sought as the child of an LPR, and it is determined that the CSPA age of the beneficiary is over 21,if the petitioner naturalizes then the petition is converted to the appropriate 1st or 3rd family preference category (marriage must occur after naturalization of petitioner). The beneficiary will retain the original priority date.

Section 6

• The unmarried son or daughter of an LPR who naturalizes automatically converts to the 1st preference Family category.

• The beneficiary can request, in writing, the automatic conversion not take place and them remain in the 2nd preference catagorie.

What if the Visa Availability Date Regresses?

• When I-485 filed:– Note visa availability date at time of filing;– Retain I-485 packet until visa again available;– When visa again available, determine

eligibility for CSPA using original visa availability date note on the I-485.

• When I-485 not filed:– When visa again available and I-485 filed, use

the subsequent visa availability date for calculation.

Following To Join

• It is recommended that any principal I485 applicants who have overseas dependents that may age out file Form I824 concurrently with their I485. The filing of the I824 will allow the following to join dependent to have a CSPA determination made should the child age out.

• The Department of State will make the determination of whether the age out dependent is CSPA section 3 eligible.

USA Patriot Act

– Allows a beneficiary who filed his/her petition prior to Sep 11, 2001 and ages out after Aug 31, 2001 to remain eligible for child status as follows:

– Aged out During Sep, 2001- 90 days after turning 21

– Aged out after Sep 30, 2001- 45 days after turning 21

April 30, 2008 Aytes Memo

• New policy extending CSPA coverage to those aliens who had an approved visa petition prior to the enactment of CSPA but who did not have a pending application for permanent residence on August 6, 2002.

• This applicant’s age should be calculated as under 21 if the applicant was under 21 when the visa numbers were current.

• The applicant applied for residence within one year of the priority date being current.

April 30, 2008 Aytes Memo (cont.)

• No deadline for a motion to reopen if applicant denied only for aging out and no fee for the motion.

• If someone did not have an application pending for their residence on august 6, 2002 and did not subsequently apply for permanent residence, they are still eligible under the CSPA if they are applying as an immediate relative or the applicant’s visa became available on or after August 7, 2001 and the applicant didn’t file within a year of visa availability, but would have qualified for CSPA coverage.

Another Consideration

• The I-130 petition was approved after the visa was available.– Use the date of the approval of the petition to

start the 12 month clock.– Remember, regardless of the dates on the

visa bulletin, the visa is not available until the petition is approved.

Some Reminders

• A determination of CSPA section 3 eligibility does not confer the benefit of adjustment of status.

• The burden is on each applicant to demonstrate eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act.

• The CSPA eligible applicant cannot qualify for derivative status unless the principal EB applicant is eligible for adjustment.

• The CSPA applicant must remain unmarried in order to qualify as a child.

CSPA

• Questions?