The Impact Of Retrogression On The CSPA
We at The Law Office of Sheela Murthy have received several questions about how retrogression impacts the benefits provided by
the Child Status Protection Act (CSPA) in employment-based green card
cases. Unmarried children are eligible for dependent benefits, including
green cards, until they turn 21 years old. However, the CSPA locks in an
age for dependent children. That is, the child is treated as being under
age 21 for purposes of immigration benefits in certain circumstances, even
though s/he is chronologically over 21 years. If the locked age is less
than 21 for an unmarried child, that child is still permitted to obtain
the green card as a dependent. With retrogression, however, the final
calculation will likely give fewer children the benefit under the
CSPA.
Priority Date Never Current before
Labor Certification Approved
Many persons are still
in the labor certification stage of the employment-based green card
process. When a labor certification is approved, such an individual can
file the I-140 petition. Under current law, s/he cannot file the I-485
application unless or until the priority date is current. In this
scenario, the child's age will not be locked until the priority date is
current. Under the CSPA formula, a child's chronological age at the time
the priority date becomes current is reduced by the time the I-140
petition was pending with the U.S. Citizenship and Immigration Services
(USCIS). To calculate the time that the I-140 petition was pending, the
government subtracts the date the USCIS approved the I-140 petition from
the date the petitioner filed the I-140 petition with the USCIS. No other
time is counted.
For example, if a child is 21 and two months old
on November 1, 2005, when the priority date becomes current for his
parent's employment-based case, the USCIS will use the following
equation:
21 years, two months – (I-140
approval date – I-140 filing date) = Child's CSPA age
If the I-140
petition was filed on January 1, 2005 and approved on July 1, 2005, then
the equation is completed as follows:
21 years, two months – (July
1, 2005 – January 1, 2005) = Child's CSPA Age
- OR -
21 years, two months – (6
months) = Child's CSPA Age
Therefore, in
this example, the Child's CSPA age is 20 years, 8 months, and the child is
eligible for a green card as long as the child seeks to acquire the green
card by filing an I-485 application in the U.S., a DS-230 Part 1 for
consular processing, or the child's parent files an I-824 application for
consular notification within one year of the priority date becoming
current.
Note that, if the USCIS processes the I-140 petition more
quickly in this example (i.e., approves the I-140 petition on February 1,
2005), the child's CSPA age would still be over age 21, and the child
would likely not qualify for the benefits of CSPA. Thus, with faster I-140
processing and long waiting times due to retrogression, the CSPA will not
always protect these children.
Priority
Date Current - Then Retrogresses
While the example
above presents a straightforward answer to whether or not a child can
benefit from the CSPA, a more troubling situation may occur if the parent
had a labor certification approved at a time when the priority dates were
current and then the dates retrogressed. The manner in which the days
would be counted is unclear, and there are a number of possible scenarios.
If the parent filed the I-140 and I-485 concurrently when the
priority dates were current, and, thereafter, cutoff dates /
unavailability occurred, it is not entirely clear that the calculation of
whether the child has sought to acquire status is counted from the time
the priority date becomes current again. That is, it is not clear whether
the one year is calculated from the date the labor certification was
approved and the person was initially eligible to file the I-140 petition
and I-485 application concurrently. Alternatively, the one year may begin
at the time the labor certification was approved and the I-485 could be
concurrently filed with the I-140 petition, but then stops when the
numbers retrogress and resumes when the priority date becomes current
again. It is also not clear if the calculation of when the priority dates
become current is measured from the first point when the I-140 and I-485
could be filed or from the point when the I-140 is approved. The USCIS and
the U.S. Department of State (DOS) will need to provide further guidance
on this issue. We at The Law Office of Sheela Murthy hope that they will
construe this matter liberally, in order to safeguard family unity and the
underlying purpose in the enactment of the CSPA.
Conclusion
The CSPA will protect
some dependents of parents who have employment-based green card petitions
pending, but it will likely not protect all. We urge the USCIS and DOS to
take a generous interpretation in applying the CSPA wherever possible to
protect the children and keep the family unit preserved, as the U.S.
Congress has expressed its intent to benefit unmarried children who are
unable to get the green card because of the delays and backlogs in green
card processing. It is best for parents, particularly those with teenaged
children, to start their green card cases as early as possible, in an
attempt to avoid an age-out situation that is not protected under the
CSPA.
This article originally appeared in Murthy Bulletin on www.murthy.com. Reprinted with permission.
About The Author
Sheela Murthy is the founder of the Law Office of Sheela Murthy, P.C. which consists of over 45 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Office of Sheela Murthy, P.C. handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Copyright © 1999-2005 American Immigration LLC, ILW.COM
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