Saturday, June 29, 2013

Child Status Protection Act (CSPA)

The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification.   The Act permits an applicant for certain benefits to retain classification as a “child,” even if he or she has reached the age of 21.

Since its enactment on Aug. 6, 2002, USCIS provided several field guidance memoranda regarding the adjudication of immigration benefits in accordance with the CSPA.   A memo issued April 30, 2008 made some substantive changes to how USCIS applies CSPA.

Q:   What is the Child Status Protection Act (CSPA)?
A “child” is defined as an individual who is unmarried and under the age of 21.  Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes.  This situation is described as “aging out.”  Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions.  CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times.  CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA).

Q. How to qualify for CSPA?
A. Please see the table below
Immediate Relative
Preference Classification for Permanent Residence or Derivative
  • If the petition (Form I-130, Petition for Alien Relative) was filed by a U.S. citizen parent for his or her child, the beneficiary’s age “freezes” on the date of filing.
  • If the petition (Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized.
  • CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

Q.   What are the eligibility criteria for CSPA?
A.   Several requirements must be met to be eligible for CSPA age out protection:
  • Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.
  • The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • The child must “seek to acquire” permanent residence within 1 year of a visa becoming available.  USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State.  The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.
Note:  Individuals may be eligible to apply for permanent residence under CSPA after 1 year of a visa becoming available if all of the following are true:
  • They are a beneficiary of a visa petition that was approved prior to August 6, 2002
  • They had not received a final decision on an application for permanent residence based or immigrant visa on that visa petition prior to August 6, 2002
  • The visa became available on or after August 7, 2001
  • They met all of the other eligibility requirements for CSPA (see above)

Q.   What can I do if I had an application for permanent residence that was denied because I aged out? 
A. If you would have been eligible for CSPA protection under the revised guidance, you can file a Motion to Reopen/Reconsider with the office that denied the application with no fee if you meet the following requirements:
  • you were the beneficiary of a visa petition that was approved prior to August 6, 2002 and filed for permanent residence after August 6, 2002 AND
  • you would have been considered a child under CSPA requirements (see above) AND
  • you applied for permanent residence within one year of visa availability AND
  • your application was denied solely because you aged out

When an application is denied, the applicant receives a written decision that cites the section of law and describes why the alien is not eligible for the benefit.   An application may be denied for one reason or for multiple reasons.   If an application was denied for more than one reason including aging-out or for any reason other than for aging out, the alien is not eligible to file a motion to reopen under the new guidance.

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