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Now We Are Seven: Time For CSPA Status Check

by Charles Wheeler

On August 6, 2009, the Child Status Protection Act (CSPA) will commemorate its seventh birthday. But in addition to celebrating its accomplishments, let's also pause to feel its growing pains. Although the U.S. Immigration and Naturalization Service (INS), Citizenship and Immigration Services (USCIS), and Department of State (DOS) have collectively issued at least fourteen memos, two Q & A's, and one Fact Sheet in an attempt to unravel its mysteries, the law still contains several provisions and what-if applications that are awaiting resolution. One should have assumed by now that these agencies would have analyzed all its ambiguities and formulated appropriate answers to the major unresolved issues. Instead, it is as if time has stood still - as if the CSPA's age-freezing provisions are being applied to the agencies entrusted to implement it. This article will attempt to summarize the current status of these problem areas and all the remaining work.

Retroactive Application. The BIA in a published decision held that the CSPA applies retroactively to family-based petitions filed and approved before the law's date of enactment, regardless of whether the beneficiary had filed an application for adjustment of status or an immigrant visa by that date (provided that if one had been filed, it was still pending on that date). Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007). This means, for example, that if one were ever classified as an immediate relative, one would never convert to the first preference based on age. If one had converted to the F-1 category due to age-out before August 6, 2002, the law restored one's immediate relative status as of that date. Fifteen months later the USCIS formally acknowledged the BIA's decision and retracted its original interpretation. By that time, only Mexican and Filipino beneficiaries were affected, since all other nationalities had become current in the first preference category.

In his memo dated May 6, 2008, Donald Neufeld explained how the CSPA would apply retroactively to both immediate relatives and preference category beneficiaries in family and employment-based cases. The revised guidance was accompanied by a Fact Sheet, which attempted to simplify a rather complex scenario. For example, if the second preference F-2A category beneficiary had a petition approved prior to August 6, 2002, did not have an adjustment of status or an immigrant visa application pending by that date (or if such an application had been filed, it had not been denied by the agency), had turned 21 before that date, had a priority date that became current on or after August 7, 2001, was under 21 using the CSPA age-reduction formula on the date the priority date became current, and did not apply for lawful permanent resident (LPR) status within one year of becoming current due to the agency's prior interpretation of CSPA's retroactive application, then the agency would forgive the failure to apply and waive the one-year requirement. Got it? If they had applied and been denied before this policy change, they were entitled to reopen their case for free. Not many beneficiaries qualified for this relief - only a handful of Filipinos and Mexicans - and even fewer immigration practitioners could explain how and when it operated.

The memo encouraged affected persons to apply for permanent residence now if they "would have qualified for CSPA coverage had he or she applied but for the prior policy guidance concerning the CSPA effective date..." Left unanswered were a myriad of questions involving potential fact situations. Would the agency's make-whole policy apply to beneficiaries who were actually entitled to apply for permanent residence after the CSPA was implemented but who have since become ineligible? For example, what if the child of the LPR subsequently got married? What if the petitioner subsequently died, or the underlying marriage dissolved, or the petitioner naturalized? Is the operative date for determining eligibility the time when the beneficiary was discouraged from filing an application - or applied but was denied - or is it now? The agency's unofficial position appears to be that the beneficiary must continue to remain eligible to immigrate in the original category, and that the agency will consider all disqualifying circumstances that have occurred in the interim. But the USCIS has yet to issue a directive on point, and such a narrow interpretation would appear to undercut the ameliorative intent - and even the actual wording - of the Neufeld memo.

To make matters worse, the USCIS issued a Q and A on June 15, 2009 in an unsuccessful attempt to shed further light on this subject. But the guidance piece starts off by stating that to qualify for CSPA protection, "the child must have been the beneficiary (principal or derivative) of a pending or approved visa petition on or after August 6, 2002." That was the agency's position before the Avila-Perez decision and the May 6, 2008 Neufeld memo, both of which concluded that the law is to be applied retroactively to help immediate relatives and preference category beneficiaries who had petitions approved before August 6, 2002.

Retention of Priority Date. Can derivative children who age out in the family-based categories, even after applying the CSPA principles, automatically convert to the appropriate category (i.e., second preference F-2B since they are unmarried and over 21) and retain the original priority date when the principal beneficiary immigrates and files a new petition in their behalf? That would be the literal reading of INA 203(h)(3), which was added by CSPA 3. But the USCIS has interpreted this provision as applying only to F-2A derivatives when they age out and automatically convert to the F-2B category, arguing that it simply codified the preexisting regulation, 8 CFR 204.2(a)(4).

Three years ago the BIA resolved this conflict in an unpublished decision that applied traditional statutory construction principles and attempted to harmonize all the terms. Matter of Garcia, A79-001-587 (BIA July 16, 2006). The Board held that the statute required retention of the priority date, and that the "appropriate category" must be viewed from the perspective of the principal beneficiary, i.e. the aged-out derivative becomes the unmarried child over 21 of an LPR. For example, in a fourth preference family-based case, should the derivative child age out, he or she would be able to retain the original priority date when the parent immigrated and filed an I-130 on his or her behalf. Given how long it took for the fourth preference to become current, the child would be current in the F-2B category, and the family would remain united. The USCIS did not adopt this case holding or interpretation, however, and the Attorney General certified a similar case to the BIA for a more definitive ruling.

The BIA, in a published decision, recently reversed itself and held that the statute could not mean what it said, since there was little in the legislative history to justify such Congressional action. Matter of Wang, 25 I&N Dec. 28 (BIA 2009). It also examined the term "conversion" and concluded that it should not be expanded to cover derivatives in the F-1, F-3, and F-4 categories who age out, since there is no "appropriate category" for these persons. It chose to limit the term "retention of priority date" to situations where the same petitioner files a new petition for the same beneficiary in the same preference category, ignoring the fact that retention in the VAWA and employment-based context is applied more expansively.

But the real problem with the decision is that it failed to address the applicant's main argument: the statute specifically references beneficiaries defined by INA 203(d) as included within the law's protection. That section covers all family- and employment-based derivatives, not just those in the F-2A category. The BIA appeared to violate the first rule in statutory construction, which is to examine the plain meaning of all the terms and decide if they can be interpreted in a way that makes sense. The BIA resolved what it viewed as an ambiguity by pretending that a key statutory term didn't exist. Given that this issue is still being hotly litigated in the federal courts, and given the weakness in the Board's reasoning, it is obvious that this debate is going to continue.

Effect of Petitioner's Naturalizing When Child Is Under 21. INA 201(f)(2), which was added by CSPA 2, covers situations where the petitioner naturalizes before the F-2A beneficiary turns 21. In those situations, the child automatically converts to the immediate relative category, since it is "the date of the parent's naturalization" that controls. But what about derivative beneficiaries who are under 21 on the date of naturalization but who turn 21 before a second I-130 can be filed in their behalf. Is the filing of the second petition a precondition to immediate relative classification, or is being under 21 on the date of the petitioner's naturalization enough? The USCIS has not taken a formal position yet, and has indicated that the question is under consideration.

Effect of Petitioner's Naturalizing When Child Is Over 21. CSPA 6 was written to address the anomaly that the F-1 category is backlogged farther that the F-2B category for Filipinos and that these children should not be penalized when their petitioning parent naturalizes and they automatically convert from the F-2B category to the F-1. The same anomaly is currently true for Mexicans, according to the July 2009 Visa Bulletin. INA 204(k)(2) now allows these sons and daughters to opt out of this automatic conversion and remain in the F-2B category. Lingering questions remain, however. Is there any time limit for making such election? Once having elected to remain in the F-2B category, may one retract that and convert to the F-1? If one opts out of conversion and subsequently marries, does that terminate the I-130 petition, or can one still be classified as the married child of a U.S. citizen?

But the more important question is whether children in the F-2A category, who are over 21 using their biological age but under 21 using their CSPA age, can opt out when their petitioning parent naturalizes. The F-2A category is preferable to the F-1 category for all nationalities. This is a critical issue for practitioners, since naturalizing the parent could delay the immigration of the child by several years.

CSPA 6 references only F-2B category beneficiaries; there appears to be no statutory authority allowing F-2A beneficiaries to opt out of automatic conversion to the first preference when their parent naturalizes. Nevertheless, the NVC in April 2009 sent out confusing instructions to children in this situation, encouraging them to apply to the USCIS for such opt out, using as authority the June 14, 2006 memo by Michael Aytes. That memo, however, didn't address this specific issue. Some of the recipients who relied on that NVC letter were successful in opting out and immigrating, while others were denied an immigrant visa by the consulate, which determined that they were in the F-1 category and therefore not current. The Visa Office and NVC have subsequently backed off and stated that their position on this matter is under review, and the USCIS has recently echoed that message.

One-Year Filing Requirement. The CSPA 3, codified at INA 203(h)(1)(A), requires a preference category beneficiary to have "sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability," in order to take advantage of CSPA's age adjusting formula. The USCIS and DOS have each defined the term "sought to acquire" narrowly. The USCIS has stated that the requirement is satisfied by the filing a Form I-485, Application to Register Permanent Residence or Adjust Status, or a Form I-824, Application for Action on an Approved Application or Petition. The DOS defined it by the filing of an I-824 or a DS-230 Part 1, Application for Immigrant Visa. The DOS noted at one point that it will also consider "other concrete step[s]" within the one-year period as satisfying that requirement, but to date the agency has neither clarified nor exemplified what steps it might consider.

The BIA, in an unpublished decision dated December 20, 2004, interpreted the phrase to include actions other than simply filing the above-referenced applications. In re Ji Young Kim, No. A-77-828-503 (12/20/04). In that case, the BIA found that seeking the assistance of an attorney within that one-year window to prepare the application for adjustment of status satisfied the requirement. The BIA found that the statutory language "sought to acquire" is broader than "filed," and includes acts that "try to acquire or gain" or "make an attempt to get or obtain." The BIA cited congressional intent for the CSPA, "which was to protect an alien 'child' from 'aging out' due to 'no fault of her own.'"

Because the BIA decision is unpublished, it does not carry any precedential weight. As expected, the USCIS and DOS do not agree with the holding and have elected not to follow it. Their narrow interpretation is presumably based on administrative convenience and concern that a more open-ended definition would water down the term and undermine Congressional intent. For example, would receiving bad advice or representation from an immigration consultant qualify as seeking LPR status within one year? What about making an inquiry to the USCIS, NVC, or congressional representative regarding the status of a case? The USCIS has stated recently that it is considering addressing the issue when it proposes regulations.

The DOS has also not confirmed that an alien who initially filed an I-485 within the one-year period, but was denied or elected instead to file for an immigrant visa after the one-year period, has satisfied the requirement. Similarly, the USCIS has not confirmed that those who filed for an immigrant visa within one year, but who later applied for adjustment of status more than one year after the visa was current, have satisfied the requirement. In both cases, the applicant should be considered to have satisfied the one-year filing requirement, since the CSPA only requires aliens to have "sought to acquire" LPR status within one year, not to have filed the application that ultimately resulted in their immigrating.

The I-824 is often filed in conjunction with an I-485 so that when the principal beneficiary adjusts status, notice will be forwarded to the NVC, which will in turn start immigrant visa processing for the derivative beneficiaries. But the I-824s may also be filed to obtain a duplicate immigrant visa approval notice. In such cases has the alien has satisfied the one-year filing requirement by filing the I-824, regardless of the reason for filing it?

Finally, it is unclear if the one-year filing requirement even applies to preference category aliens who applied for adjustment of status or an immigrant visa before turning 21, albeit more than one year after the visa became available. At least one district court has found that it doesn't. Gomes v. USCIS, No. CV-05-3767 (C.D. Cal., Mar. 23, 2006). The court held that the derivative child of an employment-based petition, who filed for adjustment of status prior to turning 21 but more than one year after the visa became current, "expressly" satisfied the definition of "child" under INA 101(b)(1)(A) at the time of filing for adjustment of status, and thus did not need to meet the one-year filing requirement.

Multiple I-130 Petitions. What happens when more than one I-130 is filed in a case? For example, the derivative child may have been about to age out from the F-2A to the F-2B category, and the LPR petitioner believed it was necessary to file a separate I-130 petition. It is unclear which I-130 petition controls for purposes of calculating the period when the I-130 was pending. The USCIS has stated that the agency will attempt to apply CSPA in the most beneficial way for the applicant, such as in the case of an applicant who is the beneficiary of multiple petitions, but more specific guidance to the field is needed.

Final Decision. For those whose I-130 was approved before August 6, 2002, but who filed an immigrant visa or adjustment of status application before that date, the CSPA will apply provided there has been no final determination on the immigrant visa or adjustment of status application before August 6, 2002. Whether an alien's application is considered "pending" or "final" on August 6, 2002, may therefore determine whether the CSPA applies in his or her case. The USCIS has taken the position that a "final decision" on the adjustment application did not include an appeal to federal district court, but the Ninth Circuit reversed. Padash v. INS, 358 F.3d 1161, 1172 (9th Cir. 2004). To date, no other circuit has addressed the issue, and the USCIS has refused to adopt the Padash decision outside the Ninth Circuit. This matter, however, is also under consideration for regulatory or policy guidance.

VAWA. VAWA beneficiaries in the second preference category are allowed apply CSPA 3's age-out formula. In other words, a VAWA self-petitioning or derivative child may subtract the period of time the "applicable petition" was pending to determine whether they are still under 21. Sometimes these children are also the beneficiaries of an I-130 that was filed prior to the I-360. Under VAWA law, it is that earlier priority date that establishes when they will become current on the approved I-360 petition. For purposes of age computation, can the VAWA beneficiary use the time the I-130 was pending, or are they limited to the time the I-360 was pending, which is typically much shorter? The USCIS does not have an official answer to this question, and a 2004 memo fails to address this specific issue. The USCIS Office of Policy and Strategy has indicated that child should be limited to the time the I-360 was pending for CSPA purposes, because this is the basis of his or her adjustment, but practitioners have been successful using the period that the I-130 was pending.

Visa Retrogression. The law is silent on how a beneficiary can comply with the one-year filing requirement when visa retrogression has prevented the filing of an immigrant visa or adjustment of status. There are at least three possible solutions: (1) deny CSPA eligibility through strict application of the law; (2) toll the one-year period during the months when the visa is no longer available; or (3) start the one-year period over when the visa becomes available. The USCIS chose a middle path: start a new one-year window when the visa becomes available the second time, but measure the child's CSPA age on the date the priority date becomes current after visa retrogression. While such a compromise seems to resolve the issue, it may not comply with the statutory language, which measures the child's CSPA age "on the date on which an immigrant visa number becomes available." Advocates are left with a strong argument that this date should be when the visa first becomes available, not when it does so for the second time after retrogression.

Conclusion. Seven years after the CSPA was implemented, numerous unresolved issues still remain. This state of flux will continue until the USCIS issues regulations or provides meaningful guidance through an omnibus memo. Meanwhile, expect further litigation challenging the agencies' actions and narrow interpretations.

About The Author

Charles Wheeler, Esq. is a senior attorney with Catholic Legal Immigration Network (CLINIC) in San Francisco. Prior to joining CLINIC, Mr. Wheeler directed the National Immigration Law Center in Los Angeles, which serves a similar function. He has been specializing in immigration law and aliens' rights issues for 25 years. He is considered an expert in several aspects of immigration law. He is a graduate of the University of Virginia and the University of Maryland School of Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.