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Late Filing for CSPA Benefit May Be Excused

Since its enactment on August 6, 2002, thousands of children who would have otherwise aged out or became ineligible to receive a green card simply by turning 21 years old have benefited from the Child Status Protection Act (CSPA). Under the CSPA, a child who has turned 21 may still be considered a “child” or under 21 for immigration purposes.

In calculating the age for derivative beneficiaries of family-based and employment-based categories, the amount of time the petition was pending is subtracted from the child’s biological age on the date when visa number becomes available to the principal beneficiary. The child will retain his derivative status if his adjusted age is below 21 but there is the additional requirement that he sought to acquire lawful permanent residence status within one year of visa availability.

A child is considered to have met the “sought to acquire” requirement if he filed Form I-485, application for adjustment of status, submitted Form DS-230 or application for immigrant visa and alien registration or Form I-824, application for action on an approved application or petition filed on his behalf.

If the child did not do any of the above within one year of visa availability, he may still be entitled to CSPA protection if he can show that his application was rejected for technical or procedural reasons or his failure to timely file was due to “extraordinary circumstances” beyond his control.

The USCIS recently released an interim policy memorandum allowing officers to use discretion in adjudicating late filings. Previously, USCIS policy did not allow the exercise of discretion. The change in policy was released in line with the decision of the Board of Immigration Appeals in Matter of Vazquez, allowing the exercise of discretion in these determinations.

In order to establish extraordinary circumstances, the applicant must demonstrate the following: (1) the circumstances were not created by the alien through his own action or inaction, (2) the circumstances were directly related to the alien’s failure to file the application within the one year period; and (3) the delay was reasonable under the circumstances.

The policy memo also outlines examples of extraordinary circumstances which may warrant a favorable exercise of discretion which include, among others, serious illness or mental or physical disability during the one year period and legal disability such as instances where the applicant was suffering from mental impairment during the one year period.

Ineffective assistance of counsel may also be considered an extraordinary circumstance if the applicant satisfies the following requirements: that the alien files an affidavit setting forth in detail the agreement entered into with counsel with respect to the actions to be taken and what representations the counsel did or did not make; that the counsel has been informed of the allegations against him and have been given the opportunity to respond or good faith effort to do so is shown; and the alien indicates whether the complaint has been filed and an explanation if no complaint is filed.

Another example is when a timely application was rejected by the USCIS as improperly filed and was returned to applicant for correction and the deficiency was corrected within a reasonable period. Death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family may also be considered.

Financial difficulty, minor medical conditions and circumstances within the applicant’s control are not considered extraordinary. The totality of the circumstances and the “nexus” of the circumstances for failing to timely file as well as the reasonableness of the delay will be considered and weighed in determining whether a favorable exercise of discretion is warranted.

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