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The Child Status Protection Act: Is Your Child Protected?

by Tammy Fox-Isicoff and H. Ronald Klasko

On August 6, 2002, President Bush signed into law the Child Status Protection Act ("CSPA"), P.L. 107-208. This law changes who can be considered a "child" for purposes of obtaining benefits under the Immigration and Nationality Act ("INA").

The CSPA requires a two-pronged analysis to determine whether a child, who would have lost benefits upon turning age 21 under prior law, is able to receive benefits under the new law. The first part of the analysis is determining the date on which the child's age is "frozen". This is the "date on which an immigrant visa number becomes available" for such child (INA 203(h)(1)(A)), which is calculated by taking the later of the date on which the priority date becomes current and the petition is approved, and subtracting the INS adjudication time for the petition. Since the purpose of the statute is to avoid penalizing children for INS delays, however, the child loses the benefit of the "frozen age" if the child has not "sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability" (INA 203(h)(1)(A)).

Unfortunately, the law, though benevolent in intention, may not be as benevolent in implementation. This article will examine three issues that are critical to determining which children will receive coverage under the CSPA, all three of which are presently the subject of some debate or controversy:

  1. Does the CSPA apply to children who are derivative beneficiaries of immigrant petitions approved prior to the effective date of the CSPA but who turn 21 prior to that date?
  2. How is the CSPA affected by concurrent filing of adjustment of status applications?
  3. What procedure must be followed in order for a child to benefit from the CSPA if the child will be a following to join immigrant visa applicant?
Applicability To Children Who Turn 21 Years Of Age Prior To August 6, 2002

The CSPA has a rather expanisve effective date provision. Specifically, it applies to any alien who is a beneficiary or derivative beneficiary of:
(1) an immigrant petition approved before August 6, 2002 "but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status...";

(2) An immigrant petition "pending" on or after August 6, 2002; or

(3) An application for immigrant visa or adjustment of status "pending" on or after August 6, 2002.

Clearly, the provisions of the law apply if either the immigrant petition is pending on the effective date or the application for adjustment of status or immigrant visa is pending on the effective date. What if the immigrant petition was approved before the effective date but the application for adjustment of status or immigrant visa was not yet filed as of August 6, 2002? Since the first provision above, unlike the second and third, does not require that the application be pending, presumably the CSPA should apply to the beneficiary or derivative beneficiary of an immigrant petition approved prior to August 6, 2002 so long as the priority date is current and the child "seeks to acquire permanent resident status" within one year of the approval of the immigrant petition.

The Department of State ("DOS") and the INS do not agree. In a cable to the field dated January 3, 2003 ("03 State 015049") ("DOS Memo"), the agencies' position is that the CSPA applies to immigrant petitions approved before August 6, 2002 only in two situations:
(1) The child did not reach 21 years of age before August 6, 2002, or

(2) The child reached 21 years of age before August 6, 2002 and the child applied for an immigrant visa or adjustment of status within one year of immigrant visa availability and before reaching 21 years of age. DOS cable dated January 3, 2003 (03 State -015049) ("DOS Memo"); INS memorandum dated February 14, 2003 (HQADN 70/1.1.1("INS Memo")).

The DOS Memo notes that the CSPA will not apply to petitions approved before August 6, 2002 where the child reached 21 years of age before that date and failed to apply for a visa prior to aging out or applied and was denied on substantive grounds because the child had aged out. [1] According to the DOS memo, if the child was denied under INA 221(g), and the child is ultimately able to overcome that ground of denial, the CSPA would apply to the child. The INS Memo expressly excludes CSPA applicability to an alien who aged out prior to August 6, 2002 unless either the immigrant petition or the application for adjustment of status was pending on August 6, 2002.

The DOS and INS read out of the statutory coverage a group of children who appear to be covered by the actual statutory effective date language. Specifically, children whose "frozen age" is under 21 prior to August 6, 2002 and who apply for adjustment of status or immigrant visa within one year of immigrant visa availability (but not before August 6, 2002) appear to be covered by the statute but excluded by the DOS memo.

For example, Mr. Smith is the beneficiary of a current I-140 visa petition approved on July 1, 2002. His son, Jordan, turned 21 years old on August 1, 2002. Mr. Smith applied for an immigrant visa on August 15, 2002. Although Jordan would be deemed a "child" under the CSPA since he was under 21 when the I-140 was approved, he would be ineligible for age-out protection under the provisions of the DOS memo as he did not apply for an immigrant visa prior to his 21st birthday or prior to August 6, 2002. However, under the CSPA effective date language, Jordan should be able to benefit from the CSPA as long as he files for an immigrant visa within one year of July 1, 2002.

The DOS and INS read into the first prong of the statutory language a requirement that the application for immigrant visa or adjustment of status be pending on the effective date. As a matter of statutory construction, this reading appears to be inappropriate. Such an interpretation of the first paragraph of the effective date provision renders it meaningless. Although the word "pending" is used in the language of the second and third paragraphs, it is not used in the first paragraph. As a matter of statutory construction, it is inappropriate to graft the "pending" requirement onto the first paragraph of the effective date language. By doing so, the DOS and INS have rendered the first paragraph meaningless by eliminating CSPA eligibility for aliens who turned 21 before August 6, 2002 but did not apply for an immigrant visa prior to that date.

Interestingly, the agencies' interpretation is consistent with an earlier version of HR1209 (which was purposefully amended and ultimately became the CSPA). The earlier version, dated January 23, 2002, had proposed to limit the applicability of the CSPA to applications and petitions that were actually pending on the effective date of the CSPA. However, in the final version of HR1209, the effective date language was expanded to include applications and petitions pending on August 6, 2002, as well as petitions approved prior to August 6, 2002 where the actual application for adjustment of status or immigrant visa application was not yet pending.

It is illogical to require the beneficiary to have applied for an immigrant visa or adjustment of status before August 6, 2002 and after reaching age 21 when the child was not eligible to file such application under the law in existence at that time. To the contrary, it would be consistent with Congress' benevolent intent, to allow children whose age is "frozen" at under 21 under the CSPA's mathematical formula to apply for an immigrant visa or adjustment of status within one year of the effective date of the CSPA where their failure to file within one year of immigrant visa availability was caused by their inability to do so under the law in existence on the date that they turned 21.

Example: An I-140 was filed for Mr. Smith, an extraordinary ability alien, on August 1, 2000. At the time the I-140 was filed, Mr. Smith's daughter, Kelli, had just turned 20 years old. The I-140 was approved on August 1, 2001. The priority date was current. At that time, Kelli was 21 years old. Mr. Smith filed an adjustment of status application on September 1, 2001, which is still pending. Kelli did not file an application for adjustment of status since she had already turned 21. Despite the fact that Kelli's age would be considered "frozen" at age 20 under the CSPA if she filed for adjustment of status within one year, she failed to file within one year because she was not able to do so under the law existing at that time. A reading of the CSPA that is consistent with covering as many children as possible who aged out because of INS delays would allow Kelli to apply for adjustment of status or an immigrant visa within one year of passage of the CSPA.

It is certainly wise for practitioners to audit files with approved immigrant petitions and/or pending applications for adjustment of status or immigrant visas to determine if any over age 21 child might qualify as a child under the CSPA and should obtain benefits under the CSPA even though the child did not file an application for adjustment of status or immigrant visa when the child turned 21. Further administrative interpretations and/or litigation may ultimately protect certain children who may be left unprotected under the present DOS and INS interpretation.

The Impact Of Concurrent Filing On The CSPA

Section 3 of the CSPA requires the beneficiary to seek to acquire the immigrant visa within one year of the date the visa number becomes available to the alien, in family preference cases, or the alien's parent in employment based cases. This raises many issues in the scenario where an I-140 visa petition is filed concurrently with the principal's I-485 adjustment application.

What is the date the visa number becomes available to the alien's parent? Generally, this is the date of the I-140 approval, if the priority date is current at that time.

How should one proceed if the child is in the United States and wishes to adjust with the parent? If the principal files an I-140 and I-485 concurrently and the beneficiary "child" is in the United States and wishes to adjust with the principal, the filing of an I-485 by the child contemporaneous with the parent's concurrent filing should protect the child. The child's I-485 will be pending when the parent's I-140 is approved, and assuming the priority date is current, the child's age will be frozen at the time the I-140 is filed.

Take the example of a concurrently filed adjustment of status, which includes the application of a 20 year old child. Assuming no quota backlogs during the course of the processing of the application, is the child eligible for adjustment if the child reaches age 21 before the immigrant petition is approved? The answer is clearly in the affirmative because, under any reading of the statutory language, the time in which the immigrant petition was pending is subtracted from the age of the child, which means that the child's age was frozen at the time of the filing of the I-140. Since the application for permanent residence was filed concurrently, it was clearly filed within one year of availability of an immigrant visa number.

A more difficult issue would be if a quota retrogression occurred subsequent to the concurrent filing. Obviously, the quota would have had to have been current in order for the concurrent filing to have been made. If, for example, the child who is age 20 at the time of the concurrent filing is age 21 at the time of the I-140 approval, is the child eligible to adjust status if the quota has retrogressed and is unavailable at the time of the I-140 approval? The authors believe that the answer is in the affirmative. The child's age should be locked in at the time of the filing of the I-485 concurrently with the I-140 when the I-140 priority date was current. The issue is "the date on which an immigrant visa number becomes available". Since the visa was available at the time of the filing of the concurrent application, the beneficiary should be locked-in. The appropriate reading of the statute would appear to freeze the child's age at the time of the I-485 filing. The language of Section 245(a) of the INA requires that, in order to file an application for adjustment of status to permanent residence, "an immigrant visa [must be] immediately available to him at the time his application is filed." The CSPA freezes the age of a child "on the date on which an immigrant visa number becomes available for such alien". Since the language of the two sections is identical, and since the application for adjustment of status is properly filed based upon immediate visa number availability, the requirement of the CSPA is necessarily satisfied; and the child's age should be frozen at the age at the time of filing.

INS and DOS appear to agree. [2] In a memo dated February 15, 2003, INS addressed visa availability under the CSPA where the visa availability date retrogresses. (HQADN 70/61.1. February 14, 2003 ("INS Memo") INS stated that when an I-485 is filed based on an approved visa petition, the visa availability date should be marked on the I-485 at the time the I-485 is filed. If the priority date subsequently retrogresses and thereafter becomes available, the determination of whether a beneficiary is a child will be based on the visa availability date noted on the pending I-485. On the other hand, if no I-485 is filed and visa availability retrogresses, the alien's age will be determined using the date that the priority date is current. See INS Memo at 3. DOS has addressed the analogous situation of immigrant visa processing. See section 21, DOS memo. In this section DOS states that there are times when Packet III (the instructions for immigrant visa applicant) is sent out when a priority date is not yet current. Nevertheless, even if the Applicant's DS-230 is received before the priority date is current, DOS states that the application will meet the requirement of the alien seeking to acquire status within one year of visa availability.

It is important to note that INS considers for CSPA purposes a visa petition to be "pending" as long as no final agency determination has been made on the petition. [3] See INS Memo at 2. INS uses the following example to illustrate this: an I-140 filed in 1998 when a beneficiary was 20 years old is denied, timely appealed, and the appeal is sustained by the AAO in 2003, the Service Center subsequently approves the I-140. The beneficiary filed form I-485 six months later. The INS explains that the beneficiary's age for CSPA purposes would be 20. See INS Memo at 5. In the concurrent processing scenario, the denial of the I-140 would result in a denial of the beneficiary's I-485. Nevertheless, the I-485 is still considered properly filed. (HQADN 70.23.1 (February 28, 2003), thus the concurrent filing of the I-485 should serve to protect the child when and if the AAO overturns the denial of the I-140.

Applicability of the CSPA To Following To Join Children

What should be done if the principal files an I-140 and I-485 concurrently and the beneficiary will be processing a following to join application abroad? DOS has advised that the filing of form I-824 within one year of the visa becoming available will protect the child. See section 22, DOS memo. DOS notes that the instructions to the adjustment application provide for the filing of form I-824 simultaneously with form I-485. Unfortunately, as a matter of practice, INS has often separated I-824 applications from I-485 applications and returned the I-824 application. Additionally, some INS Service Centers have refused to accept I-824 applications filed with I-485 applications. Since the filing of the I-824 is construed to constitute the application for the visa, it is imperative that I-824 forms be filed on behalf of all children of adjustment applicants who will be processing following to join applications abroad. As a matter of course, the form I-824 should be filed with the principal's concurrently filed I-140 and I-485. If the principal does not file concurrently, the I-824 must be filed within one year of the date the I-140 is approved, assuming the priority date is current, either together with the I-485 or separately if the I-485 is already pending.

Under DOS guidelines, a principal who fails to file form I-824 or fails to take some other undefined concrete step to obtain residence status for his/her child within one year of the approval of the I-140 (the date of immigrant visa availability) will deprive the beneficiary of protection under the CSPA. See DOS memo, section 23. Id.

For example, Mr. Smith is the beneficiary of an I-140 approved on September 2, 2001. He filed an adjustment of status application on September 5, 2001. His adjustment application is still pending. His daughter, Jennifer, is 20 years old. She resides in Bogota, Colombia and will be processing her following to join application in Bogota. If Mr. Smith did not file form I-824 on or before September 2, 2002, Jennifer will not be protected under the CSPA. This is true even though the common practice is to file form I-824 upon receiving notice of the principal's adjustment approval as INS regularly rejects forms I-824 filed prior to the principal's adjustment application as there is nothing to adjudicate.

Since DOS generally considers a visa to be available when an immigrant visa interview is scheduled, a more generous approach from DOS would be to require a child to seek to obtain the immigrant visa within one year of being advised that an interview has been scheduled. See 22 CFR 42.83 . The child's in person application for the immigrant visa would be the action satisfying the "seeking to obtain the immigrant visa" requirement. This would be consistent with the purpose of the statute-and prior use of the same terminology by DOS. Alternatively, the DOS could require the child to apply for a visa within one year of visa availability (the parent's priority date becoming current) or within one year of the passage of the CSPA, whichever is later, in order to allow intended beneficiaries of the law to file form I-824 now. Finally, perhaps the best solution would be to require the filing of form I-824 within one year of approval of the parent's adjustment of status, which would be consistent with INS's previous practices and policies.

At this time, attorneys should audit their files to ascertain whether any adjustment applicants have following to join derivatives who will be processing abroad. Form I-824 must be filed within one year of the date the visa became available, generally the I-140 approval date in all of these cases. Attorneys might also consider filing Form I-824 for derivatives who would be considered children under the CSPA but who failed to file Form I-824 timely. DOS might rectify its interpretation of the CSPA and these individuals might benefit from such a change.

Conclusion

The CSPA is one of the most beneficent acts of Congress in the immigration arena in recent memory. However, administrative interpretation and implementation of its provisions can at best be described as a work in progress. Faced with this state of affairs, practitioners should argue for an expansive interpretation of the CSPA and, where necessary, litigate in order to protect arguably intended beneficiaries of the law. At the same time, practitioners should review all files to determine whether any over age 21 sons or daughters might qualify for a benefit for which they were not entitled at the time of initial review of the file.

[1]DOS in a cable to the filed dated May 3, 2003 (03 State 15049) clarified that since 22 CFR 42,81(e) provides an alien a one-year period to overcome any refusal, a refusal less than one year old should not be considered a "final determination". Accordingly, an alien refused a visa between August 6, 2001 and August 5, 2002, has not been issued a "final determination" and the CSPA may apply to the case.

[2]The BCIS has not yet spoken on this issue.

[3]Although INS considers a visa petition pending through final administrative appeals for the purpose of the CSPA, in the concurrent processing scenario, INS has instructed adjudicators to deny adjustment, employment authorization, and advance parole applications where an I-140 is denied by the Service Center. If the denial is later overturned on appeal the Service may motion to reopen and reconsider these applications. (HQADN 70/23.1 (February 28, 2003)).


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