PURPOSE
The purpose of the Child Status Protection Act (CSPA) was to alleviate the hardship faced by certain aliens who were previously classified as children for immigrant visa purposes but who, because of the time required to adjudicate their petitions, turned 21 years old and became ineligible as a result. The Immigration and Nationality Act defines a “child” as a person who is unmarried and under 21 years old. Though the Child Status Protection Act does not change this definition, it provides methods for calculating an alien’s age for the purposes of immigrant visa. The resulting age is known as the alien’s “CSPA age”. CSPA also does not change the requirement that the alien must be unmarried in order to remain eligible for classification as a child for the purpose of immigrant visa. This blog will discuss CSPA as it relates to family, employment and diversity adjustments. Its application to Refugee and/or political asylum will be discussed in a later blog.
EFFECTIVE DATE
The Child Status Protection Act went into effect on August 6, 2002. Accordingly, adjustment applicants are eligible for the CSPA consideration if either the qualifying application for adjustment of status or one of the following underlying forms was filed or was pending on or after the effective date:
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Petition for Alien Relative (Form I-130);
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Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360);
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Immigrant Petition for Alien Worker (Form I-140);
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Application for Asylum and for Withholding of Removal (Form I-589);
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Registration for Classification as a Refugee (Form I-590); or
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Refugee/Asylum Relative Petition (Form I-730).
CALCULATING THE CSPA AGE
The Child Status Protection Act applies differently to family, employment and Diversity adjustment applicants than it does to other types of applicants such as refugee, Asylee, etc. The Child Status Protection Act provides a formula by which to calculate the “CSPA age” that takes into consideration, the amount of time the qualifying petition was pending. In addition, the applicant’s eligibility depends also on whether the applicant sought to acquire lawful permanent status within 1 year of visa availability. For family, employment, Diversity and Violence Against Women Act, an adjustment applicant’s CSPA age is calculated by subtracting the number of days the petition was pending (pending time) from the applicant’s age on the date the immigrant visa becomes available (age at time of visa availability).
The formula is expressed as follows:
Age at time of visa availability – Pending time = CSPA Age.
For example: The applicant is 21 years and 4 months old when an immigrant visa becomes available. The applicant’s petition was pending for 6 months. The applicant’s CSPA age is calculated as follows:
21 years and 4 months – 6 months = 20 years and 10 months.
Therefore, the applicant’s CSPA age is under 21.
DETERMINING LENGTH OF TIME PETITION WAS PENDING
For a family and employment based preference adjustment applicants, the length of time a petition was pending (pending time) is the number of days between the date the application was filed (filing date) and the approval date. The formula for determining the length of time the petition was pending is as follows:
Approval date – Filing date = Pending time
For example, the applicant’s mother or father filed a petition on behalf of the applicant on February 1, 2016. The USCIS approved the petition on August 1, 2016, the pending time is 6 months or 182 days:
August 1, 2016 – February 1, 2016 = 6 months (182 days).
Pending time includes administrative review, such as motions and appeals, but does not include consular returns.
SOUGHT TO ACQUIRE REQUIREMENT
In order for family and employment preference adjustment applicants to benefit from the CSPA, they must seek to acquire lawful permanent residence within 1 year of visa availability. To satisfy this requirement, an adjustment applicant has to:
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Properly file an application for adjustment of status – Form I-485;
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Submit a completed immigrant visa Electronic application – form DS-260, Part 1 to the Department of State, through the National Visa Center, or
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Having a properly filed application for action on approved application or Petition – Form I-824 – filed on the applicant’s behalf.
From the date of visa availability, the applicant has 1 year to fulfill the sought to acquire requirement. If the applicant does not seek to acquire within 1 year of visa availability, he or she cannot benefit from the age-out protections of CSPA.
VISA AVAILABILITY DATE
From the date of Visa Availability, family, employment and Diversity applicants have 1 year in which to seek to acquire adjustment of status in order to take advantage of the CSPA protection. The date of visa availability is the date of petition approval or the first day of the month of the Department of States VISA BULLETIN that indicates availability for that immigrant preference category and priority date according to the Final Action Dates chart, whichever is later.
EXTRAORDINARY CIRCUMSTANCES WARRANTING WAIVER OF SOUGHT TO ACQUIRE REQUIREMENT
Adjustment of status applicants who fail to comply with the Sought to acquire requirement within one year of visa availability may still take advantage of CSPA if they can establish that their failure to meet the requirement was because of extraordinary circumstances. In order to establish extraordinary circumstances, the applicant must establish the following:
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That the circumstances were not caused by the him or her;
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That the circumstances directly affected his or her inability to seek to acquire within the allowed period; and
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That the delay was reasonable under the circumstances.
The following are examples of the kind of extraordinary circumstances that might lead to a favorable exercise of discretion by the USCIS:
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Serious illness, mental or physical disability that affected the applicant before or during the one year period;
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Legal incapacity or disability before or during the one year period;
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Circumstances where the relevant application was filed timely but was rejected by the USCIS, returned and corrected and re-filed within a reasonable time;
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Death, serious illness or incapacity of applicant’s lawyer, applicant or immediate family member of applicant;
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Ineffective assistance of counsel by applicant’s lawyer.