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Question:

I very much enjoyed the October 31st teleconference on the CPSA. I found it most helpful and was hoping to follow up with two related questions. They regard 1) delayed consular processing due to death of a petitioner and 2) procedural considerations for a CPSA derivative beneficiary currently residing in the U.S. in valid NI status.

BACKGROUND
We have a client (Indian national) who is the beneficiary of an approved I-130 petition (approved in 1988) and who's IV number became current in March 2001. The client's three children were still minors as of the IV availability date. Our client received an immigrant visa interview date in March 2001, a subsequent interview date in August 2002 and we are currently waiting for a third interview to be scheduled. (The delay arose from the petitioner's death). Two of the three children have turned 21 since the IV number became available. I believe both children (over 21) should benefit from the provisions of CPSA §3. However, there are two unusual circumstances about which I seek your insight:

ISSUE #1: The delay in consular processing between the IV availability date (March 1, 2001) and the final interview date (pending) was caused by the petitioner's death (and subsequent filing and approval of a request for reinstatement based on humanitarian discretion). QUESTION-1A: Does this delay somehow obviate our showing that the beneficiary sought LPR benefits within one year of the availability date pursuant to CPSA requirements? QUESTION-1B: Is there any reason to think that this delay would jeopardize applicability of the CPSA to these two derivative beneficiaries?

ISSUE #2: One of the over-21 derivative beneficiaries currently resides in the U.S. in valid F-1 status. QUESTION-2A: Is there any procedure by which to apply for an AOS based on his derivative status as protected by the CPSA, rather than sending him back to India for consular processing? QUESTION-2B: Is there any way to avoid the risk that the India Consulate may not properly apply the CPSA, thereby precluding the issuance of LPR status and rendering return to the U.S. on F-1 status difficult if not impossible?

I have been unable to find guidance on these matters in the statute, DOJ/DOS interpretive memos, or secondary analysis. I would sincerely appreciate any suggestions you might offer. Thank you very much for your time in reading this and for any assistance you can provide.

Answer by Cyrus D. Mehta:

In cases where the visa became available prior to CSPA's enactment, the DOS Cable requires the child to have applied for the immigrant visa before August 6, 2002. It is not clear from your question whether DS-230 II was filed on behalf of the children prior to August 6 or not. Even if DS-230 II was not filed, you may want to still file now and request the US Consulate to seek an advisory opinion from the Visa Office. The DOS Cable makes clear that the requirement for the child to have applied prior to August 6 is only a preliminary interpretation. There is no provision in the CSPA that allows for any exception in seeking permanent residency within the one year period of visa availability.

The main issue that comes into play is when does the one year period start running for a child to seek permanent residency in cases where the visa number becomes available prior to August 6? If it is from the date of visa availability, which is March 2001 in your case, and Form DS 230 II was not filed within that year, the children are out of luck. If on the other hand, the DOS reinterprets the law, through effective advocacy, and allows the one year period to start running from August 6, 2002 to 2003, that would open up a window of opportunity for your clients.

If one of the children who is in the US applies for adjustment of status, the same issue that is addressed in the previous paragraph would apply to this child. When does the one year period start running for cases where the visa number became available prior to CSPA's enactment? Is it from the date of visa availability (prior to CSPA's enactment) or from August 6, 2002? The INS may also require, like the DOS, that the I-485 should have been filed prior to August 6. This seems to be suggested in the INS Memo but it is not very clear.

Again, you may want to file the I-485 and advocate that the the one year period should start from Aug 6 and not earlier. Let me caution you that this would be an aggressive approach to take as both the DOS and INS memos seem to suggest that the adjustment of status or immigrant visa applications should have been filed before August 6.