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How CSPA Works with Respect to "Age-Outs"

by Carl Shusterman

This month, we received several questions from our subscribers regarding the complex provisions of the Child Status Protection Act (CSPA) including its effect on children who turn 21 before the parent receives his or her green card based on an employment or a family-based petition. Sometimes, CSPA protects children from aging out, and it is not unusual for a 22-year-old to adjust status because his "immigration age" remains below 21. Other times, a child who ages-out despite CSPA may be able to obtain permanent status through another section of CSPA which confers benefits on sons and daughters who have "aged-out".

Example #1 - Mr. Kumar was born in India. He came to the U.S. as an H-1B computer professional in 1999. In March 2001, his employer submitted an application for labor certification on his behalf. This application was approved in 2004. On June 30, 2004, his employer filed an immigration visa petition (form I-140) for him. Simultaneously, he, his wife and his daughter Krishna all applied for adjustment of status (forms I-485). His son Rakesh is a senior at the London School of Economics. He would like to immigrate to the U.S. as soon as possible.

The CIS approved the I-140 on December 30, 2004 and the I-485s for Mr. Kumar, his wife and his daughter on October 15, 2006. His son Rakesh turned 21 years of age on October 2, 2006.

The general rule is that only the principal, his spouse and his unmarried children who are under 21 years of age may obtain permanent residence at the same time as their parent or may follow-to-join their parent in the U.S. at a later time. Since Rakesh was already 21 years old when his father obtained his green card, does CSPA prevent him from aging-out?

Analysis: CSPA requires a three-part analysis in the case of "derivative beneficiaries". Mr. Kumar is the principal beneficiary since he is immigrating through his employment. Rakesh is a derivative beneficiary since he is immigrating through his father's job.

Step #1 - Determine Rakesh's age on the date that his father adjusted his status. His age was 21 years and 13 days.

Step #2 - Subtract from Rakesh's age the amount of time that his father's I-140 was pending. Since Mr. Kumar's employer filed an I-140 on his behalf on June 30, 2004 and it was approved on December 30, 2004, this period of six months is subtracted from Rakesh's age making his "immigration age" 20 years, 6 months and 13 days. Since this is less than 21 years, this means that Rakesh is considered a "child" under CSPA.

Step #3 - Rakesh must apply for an immigrant visa within one year of the date of his father's adjustment of status. The easiest way to start the application process would have been for Mr. Kumar to file form I-824 for Rakesh with his application for adjustment of status. If he failed to do so, he has one year beginning on the date that he adjusted his status to submit the I-824. If he does so, Rakesh may follow-to-join his family as a permanent resident no matter what his age when his immigrant visa is granted. His age, for immigration purposes, is frozen at 20 years. However, should he marry even one day before he arrives in the U.S., he would no longer be considered a child, and would lose this opportunity to follow-to-join his family in the U.S.

Example #2 - Mrs. Lee was born in the Philippines. On September 15, 1983, her sister, a citizen of the U.S., submitted a visa petition (form I-130) on her behalf. The petition was approved on February 15, 1984.

In 1985, Ms. Lee married a man born in the Philippines. They have three children: Ramon born in 1984, Malou born in 1987 and Dino born in 1990.

Ms. Lee obtained an H-1B visa and came to the U.S. in 1992 together with her family who entered the U.S. on H-4 visas. She lost her job and fell out of status in 1994, but stayed in the U.S. waiting for her priority date to be current. Since her priority date is September 15, 1983, Ms. Lee and her family are eligible to adjust status under section 245(i).

However, since Ramon was born on April 1, 1984, he was 21 years and nine months old in January 2006, the month that his priority date became current. Applying the three-step test for derivative beneficiaries under CSPA in Example #1 (above) does not result in Ramon being classified as a child. Since the I-130 for his mother was approved in five months, Ramon's "immigration age" is 21 years, nine months (his actual age) less five months (the amount of time that the I-130 for his mother was pending) or 21 years, four months. Since his immigration age is over 21 years old, he cannot be classified as a child.

Is there any way that Ramon can benefit from CSPA? Fortunately, yes.

Section 3 of CSPA added section 203(h)(3) to the Immigration and Nationality Act (INA) which provides as follows:

"RETENTION OF PRIORITY DATE - If the age of the alien is determined under section (1) to be 21 years of age or older for purposes of subsections (a)(2)(A) and (d), the alien's petition shall be automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition."

The CIS has never explained how the agency interprets this section of law. However, we believe that the "appropriate category" is the family- based 2B category (unmarried adult sons and daughters of lawful permanent residents). This is because since Ramon is now over 21 years of age and his mother is a lawful permanent resident, this is the only category that she could use to petition him. What is the "original priority date"? We believe that it is September 15, 1983, the day that his aunt petitioned from his mother and her family.

If Ramon's 2B priority date is September 15, 1983, he is immediately able to adjust his status under section 245(i) since the current priority date for persons born in the Philippines in the 2B category is currently in the fall of 1996.

Since the CIS has yet to give their opinion as to this section of law, would the agency reject Ramon's application for adjustment of status? We think not. On June 16, 2006, the Board of Immigration Appeals (BIA), in an unpublished decision entitled "In re: Maria T. Garcia", interpreted section 203(h)(3), INA exactly this way in a case where the facts mirror those in this example.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

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