THE CHILD STATUS PROTECTION ACT

Charles Wheeler

Catholic Legal Immigration Network, Inc.

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CSPA BENEFITSCSPA BENEFITS

• Prevents immediate relatives from aging out

• Allows some children of LPRs to retain 2A preference classification

• Allows some other children to retain derivative classification

• Mitigates disadvantage of petitioner’s naturalizing (in most cases)

• Helps VAWA beneficiaries and derivative asylees/refugees

CSPA NOT APPLICABLE

• Nonimmigrant derivatives– Fiances (K visas)

– Children of LPRs (V visas)

• NACARA• HRIFA• Special Immigrant Juveniles• Family Unity• Cuban Adjustment

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IMMEDIATE RELATIVESIMMEDIATE RELATIVES

• Child of USC remains immediate relative if under 21 when I-130 filed

• Age is frozen at time of filing, regardless of when it was filed

• Doesn’t protect children who marry

• Check to see if any 1st preference cases should be reclassified as IRs

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EXAMPLEEXAMPLE

Martha, a U.S. citizen, filed an I-130 petition for her unmarried 20-year-old son on November 15, 2008. She received a receipt notice from the Service Center and has heard that it could take approximately six months to approve the petition. Her son will turn 21 tomorrow. What advice do you give her?

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IMMEDIATE RELATIVESIMMEDIATE RELATIVES

• Child of LPR becomes immediate relative if under 21 when parent naturalizes (2A => IR) and I-130 previously filed

• CSPA prevents immediate relative from aging out

• If derivative, LPR must file separate I-130• CSPA should lock in age on date of

naturalization, not date of filing subsequent I-130, but not USCIS policy

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EXAMPLEEXAMPLE

Three years ago Manuel, an LPR from Mexico, filed an I-130 for his son, Pedro, when Pedro was only 17 years old. Six months ago, Manuel naturalized, allowing Pedro to file for adjustment of status as an immediate relative. But just last week, before the adjustment interview could be scheduled, Pedro turned 21. What immigration category is Pedro in and what advice do you have for him?

EXAMPLE

Same facts, only Manuel filed the I-130 for his wife, with Pedro being named as a derivative child. When Manuel naturalized, Pedro was under 21. But he turned 21 before a new I-130 could be filed in his behalf. What is Pedro’s immigration category?

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IMMEDIATE RELATIVESIMMEDIATE RELATIVES

• Married child of USC converts to immediate relative if under 21 when child divorces (3rd => IR)

• CSPA prevents immediate relative from aging out

• CSPA locks in age on date of divorce

EXAMPLE

Two years ago Manny, a U.S. citizen, filed an I-130 for his married son, Peter. At the time, Peter was 19. A year later, Peter divorced his wife. Will the divorce allow Peter to immigrate faster? What if Peter turned 21 last month?

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2A CLASSIFICATION2A CLASSIFICATION

• CSPA freezes age of children of USCs (IRs) on date I-130 petition filed or petitioner naturalizes

• CSPA freezes age of children of LPRs (2As) on date priority date becomes current for the 2A category

• Use “adjusted” or CSPA age, not biological age• Must know child’s date of birth, priority date,

approval date, date 2A became current• Must apply mathematical computation

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2A CLASSIFICATION2A CLASSIFICATION

• Adjusted age = biological age minus time I-130 was pending at Service Center

• Add all time between priority date and approval notice

• Calculate adjusted date of birth by adding time to biological date of birth

• When was 2A current (first day of month)?• If under 21 on that date, frozen as 2A• Must seek LPR status within 1 year

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EXAMPLEEXAMPLE

Maria, an LPR from Mexico, filed an I-130 for her daughter on March 1, 2001. She received an approval notice dated September 1, 2001. Her daughter was born on August 9, 1987. She recently came to you because she learned there is a law that might help her. You find out that the 2A family preference category became current in January 2009. What advice do you give them?

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WORKSHEETWORKSHEET

• Date of birth? August 9, 1987• Time I-130 pending? six months• Adjusted date of birth? February 9, 1988• Date turn 21? February 9, 2009• Date visa current? January 1, 2009• Age on that date? 20 years, 10 mos, 22 days• Sought LPR status w/in one year?

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ONE-YEAR FILING ONE-YEAR FILING REQUIREMENTREQUIREMENT

• One year from date become current or petition approval to file:

– I-485

– I-824

– DS 230 Part 1

• But see Kim decision

– Sought to acquire interpreted broadly

– USCIS and DOS not following it

MATTER OF JI YOUNG KIM

• File #A77-828-503 (unreported BIA)

• Did not file for adjustment w/in 1 year

• Sought assistance of attorney w/in 1 year

• BIA held it was sufficient

• “sought to acquire” LPR status w/in 1 year

• Think creatively

USA PATRIOT ACT § 424

• I-130 filed on or before September 11, 2001 and turned 21 after that date

• Subtract additional 45 days from child’s age (or add to date of birth)

• Use together with CSPA formula

EXAMPLE

Michele, an LPR, applied for her daughter on August 1, 2000. Petition was pending two years. Daughter turned 21 on October 1, 2004. Second preference became current on November 1, 2006. Using her CSPA age, she turned 21 on October 1, 2006. But first subtract 45 days from daughter’s age, then two years. She was under 21 on November 1, 2006 and retains 2A status.

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DERIVATIVESDERIVATIVES

• Derivatives in 1st, 2nd, 3rd and 4th preference categories apply same adjusted age principle and formula as 2A

• Current means first day of month when principal becomes current

• Must apply within 1 year of availability

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EXAMPLEEXAMPLE

Lynn filed a fourth preference petition for her sister eleven years ago, and it is just now current. Unfortunately, her sister’s child turned 21 three months ago. Is there any additional information you would want to know before advising them?

EMPLOYMENT-BASED

• Apply same principles as for family-based derivatives

• Calculate derivative child’s age on date employment-based visa becomes current for parent

• Subtract time I-140 pending, which is time between filing and approval (don’t use priority date)

VISA RETROGRESSION

• Affects one-year filing requirement, as well as child’s age calculation

• If let one year pass before seeking LPR status and then visa retrogresses, no help

• If visa retrogresses during one-year window, new one-year period begins once visa becomes available again

• Calculate age on date visa available 2nd time

EXAMPLE

David’s 2A priority date became current on August 1, 2006. He took no action and the visa retrogressed in June 2007. The visa became current again in October 2007. David has until October 1, 2008 to seek LPR status. Calculate David’s adjusted age on October 1, 2007 to see if he was still under 21 and qualifies for a 2A visa.

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RETENTION OF PRIORITY DATE RETENTION OF PRIORITY DATE IF DERIVATIVE AGES OUTIF DERIVATIVE AGES OUT

• Statutory language: when derivatives age out, they automatically convert to the appropriate category and retain priority date

• USCS interpretation => only applies to 2A’s who age out, not to others

• Opposing view => applies to all derivatives• Maria Garcia decision by BIA

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MARIA T. GARCIAMARIA T. GARCIA

• File #A79-001-587 (unreported BIA)• Derivative child in 4th preference aged out• Principal (mother) becomes LPR and files

new I-130 for child• BIA held that CSPA allows child to

automatically convert to appropriate visa category and retain priority date

• 2B category already current

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EXAMPLEEXAMPLE

Sam filed a 3rd preference petition for his married son, Juan. On the date Juan and his wife immigrated, their eldest daughter, Maria, was 24 and couldn’t immigrate as a derivative. Juan filed a new I-130 for his daughter in the 2B category. He included a copy of the first I-130 approval notice and asked the Service Center to retain the priority date, thus making her current.

CASES CERTIFIED TO BIA

• MATTER OF WANG - Family Based • MATTER OF PATEL - Employment Based

PENDING FEDERAL LAWSUITS

• Costelo v. Chertoff • Cuellar de Osorio v. Scharfen

• For more information please see www.shusterman.com/cspa.html

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RELIEF FOR FILIPINOSRELIEF FOR FILIPINOS

• 1st preference category backlogged farther than 2B for Filipinos and sometimes Mexicans

• When parent naturalizes, unmarried sons and daughters over 21 move from 2B to 1st unless elect to stay in 2B

• File election with local district office if adjusting status or consulate in Manila

• Can elect regardless of when parent naturalized

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CURRENT CURRENT INTERPRETATIONINTERPRETATION

• Can be under 21 or over 21 when I-130 filed• If over 21 when parent naturalizes, convert to 1st

preference category (even if otherwise qualify for 2A status using adjusted age). Can’t elect to stay in 2A, but must convert to F-1. But seeking USCIS confirmation and interpretation of Aytes memo.

• 1st preference backlogged farther than 2A for all nationalities (March 2009)

• Don’t naturalize if will adversely affect child• NVC sending out confusing and erroneous letters

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EXAMPLEEXAMPLE

Jose, an LPR from Mexico, filed an I-130 for his daughter. At the time, she was 17 years old. The I-130 was pending for four and a half years before it was approved. The daughter is now 23, but according to her adjusted age, she is only 19 and is still in the 2A category. Her visa is almost current, but her father naturalized last month. What visa category is she in now?

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IMPLEMENTATION IMPLEMENTATION • CSPA applies to petitions filed before, on,

or after 8/6/02

• Applies to petitions approved before, on, or after 8/6/02

• Applies to petitions where beneficiary turned 21 before, on, or after 8/6/02

• Applies to petitions approved before 8/6/02 if I-485 or IV application filed and no final adjudication by that date

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IMPLEMENTATIONIMPLEMENTATION

• Avila-Perez, 24 I&N Dec. 78 (BIA 2007): not required to have filed for adjustment of status or immigrant visa prior to 8/6/02 if aged out before that date

• CSPA applies to all who were ever an immediate relative

• CSPA applies to 2A and derivatives, so long as comply with one-year filing requirement

EXAMPLE

Alberto, a naturalized U.S. citizen, petitioned for his 20-year-old Mexican son in April 2000. His son turned 21 while the petition was still pending and he converted to the 1st preference. He has been waiting since then for the visa to become available. Under the revised policy, he is an immediate relative and can now file to adjust or consular process.

IMPLEMENTATIONIMPLEMENTATION(LATEST USCIS MEMO)(LATEST USCIS MEMO)

• Children of LPRs who were under 21 using CSPA age when visa became current can also take advantage of new policy decision

• Must have filed for LPR status w/in 1 year• If became current on or after August 7,

2001 and did not file because adversely affected by old policy, can file now

• If filed and were denied, can file to reopen

EXAMPLE

Daniel, an LPR from Mexico, filed an I-130 for his son on June 15, 1996. It was pending two and a half years. The son turned 21 on August 1, 2001. The 2A became current in September 2003. The son was under 21 using his CSPA age on that date. He did not file for adjustment because he had turned 21 and did not have a petition or application pending on August 6, 2002. He can file now and the one-year rule is waived.

EXAMPLE

Same facts, only the son filed for adjustment claiming the CSPA applied to him. The adjustment application was denied based on the old CSPA interpretation. He can file a motion to reopen the denied application without having to pay a fee.

WHO IS HELPED?

• Mexicans and Filipinos who were ever classified as immediate relatives and thought they converted to 1st preference

• Mexicans and Filipinos who turned 21 before August 6, 2002 and should have been classified as 2A using CSPA age but had no petition pending on August 6, 2002

• Very few person affected by new policy

CSPA AND CHILDREN OF ASYLEES AND REFUGEES

• CSPA protects most derivative asylee/refugee children from “aging out”

• “For any asylum or refugee application filed after August 6, 2002, a derivative child will retain classification as a child for purposes of … Section 209 adjustment.”

• If derivative aged out and not protected by CSPA, s/he would need to do nunc pro tunc asylum application in order to adjust

• Children who marry lose CSPA protection

CSPA AND CHILDREN OF ASYLEES AND REFUGEES

• Look at the date the principal alien applied for asylum or refugee status

• If child named on application, unmarried and under 21 on that date, child preserves derivative status until application approved

• Child also qualifies to adjust as derivative asylee

ASYLEE DERIVATIVES• Child under 21 at time asylum application filed,

named on application, and in the U.S.– Continues to be eligible as derivative if I-589

pending on or filed after 8/6/02– As derivative asylee, files for adjustment after one

year, regardless of age– Cannot take advantage of CSPA if asylum

application approved prior to 8/6/02 unless I-730 or I-485 pending on that date or age out afterward

ASYLEE DERIVATIVES

• Child under 21 at time asylum filed and outside U.S.– Must file I-730– If asylum granted on or after 8/6/02, child

remains derivative (doesn’t age out)– If asylum granted before 8/6/02 and child

turned 21 before 8/6/02, no age-out if I-730 pending on 8/6/02

DIVERSITY VISA LOTTERY

• DV derivatives apply adjusted age formula

• Time pending is period between first day of DV mail-in and date of congratulatory letter

• Subtract that period from the child’s age

VAWA

• Immediate relative children applying as principals do not age out if under 21 on date I-360 filed

• Same with immediate relative derivatives• Question on effect of prior I-130 for child:

Can consider to be immediate relative for VAWA if under 21 when I-130 filed but now over 21 and want to file I-360?

VAWA

• Preference category children apply same age-out and adjusted age principles as family-based

• Subtract time applicable petition was pending to determine if convert from 2A to 2B or lose derivative status

• Question of whether to apply time pending for prior I-130 or only I-360