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Under CSPA Child Must File Adjustment Within 1 Year

For ten years now, the Child Status Protection Act (CSPA) has given relief to many thousands of children of U.S. citizens and lawful permanent residents who would have otherwise “aged out” or lost the privilege of getting a green card simply for turning 21 years old. Their long wait was in most cases due to government delay in processing the immigrant petitions.

The CSPA allows a child who has turned 21 to still be considered a “child” for immigration benefits purposes. Under Section 3 of the INA, to qualify as a “child” the length of time the petition was adjudicated is deducted from the beneficiary’s age on the date a visa number became available. If using this formula the child’s age falls below 21, the child can benefit from the CSPA if he “sought to acquire” lawful permanent resident status within one year of visa availability.

Previously, the “sought to acquire” portion of eligibility for CSPA age-out protection was interpreted broadly to include “substantial steps” in pursuing lawful permanent resident status. However, the Board of Immigration Appeals recently rendered a restrictive interpretation of this provision.

In a recent case, Matter of Vazquez, a derivative beneficiary of an I-130 petition filed an adjustment of status application more than one year from the date that his visa number became available. The USCIS denied it on the ground that he had “aged out” of his derivative beneficiary status.

The USCIS reasoned that he had not “sought to acquire” permanent resident status within a year of visa availability because he did not file his adjustment application within 1 year of the visa number becoming available. Since he did not meet the “sought to acquire” requirement, he was denied the benefit of the CSPA.

He was then placed under removal proceedings. He argued before the immigration judge that he met the “sought to acquire” requirement because, within the 1 year period after a visa became available, his parents consulted with a notario about filing an application. The judge disagreed with this interpretation and ordered the respondent’s deportation.

He appealed to the Board of Immigration Appeals (BIA) and argued that since the law uses “sought to acquire” instead of “filed”, Congress intended to allow a range of actions aside from the “filing” of the adjustment of status application.

The Department of Homeland Security (DHS), on the other hand, persuaded the BIA that Congress had to use language that would cover the different processes used by the Department of State (DOS) and the DHS, both of which adjudicate requests for immigrant status. The DOS does not ordinarily use the term “filed” to refer to the initiation of the visa application process. Instead, it uses the word “submit” when referring to the Form DS-230 or the Application for Immigrant Visa and Alien Registration.

The BIA agreed with the DHS and said that it was reasonable for Congress to avoid using the word “filed” because of the difference in language between DOS and DHS.

To the BIA, the 1 year period given to the alien to take advantage of CSPA’s age-out protection was more than enough to enable the alien to seek legal assistance, gather documentation and execute the forms. When it comes to DHS (USCIS) cases, therefore, the proper filing of an adjustment of status application will unquestionably satisfy the “sought to acquire” requirement.

The alien may also meet the requirement through other actions that fall short of filing, such as when an alien submits the application to the DHS but it is rejected for a procedural or technical reason.

Extraordinary circumstances may also satisfy the requirement, as in cases where the failure to file timely was because of circumstances beyond the alien’s control. For example, the alien may have paid an attorney to file the adjustment application but the attorney failed to do so in time.

Contacting an attorney about initiating the process of obtaining a visa is not enough to meet the requirement, according to the BIA.

Unfortunately, since Vazquez is a precedent ruling it has to be followed even if one may argue that it is not faithful to the intent behind the remedial legislation. Congress passed the CSPA to bring families together and give relief to children who lose the opportunity to become permanent residents when the government takes too long to process their adjustment of status applications. A court has even ruled that the CSPA should be interpreted in a way that provides expansive relief to children of U.S. citizens and permanent residents.

The ruling in Vazquez limited itself to DHS cases. For DOS cases or consular-processed immigrant visa applications, the broader reading of the “sought to acquire” provision should still apply.

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