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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.

Opting-Out to Prevent Longer Wait for Visa

Because of the visa backlog, it is common for a lawful permanent resident (LPR) parent, usually after living in the U.S. for five years, to become a naturalized citizen while a child waits for a visa on the basis of an approved second preference petition.

Under the Child Status Protection Act (CSPA), when a permanent resident parent naturalizes the beneficiary in an F2B petition (unmarried sons and daughters of LPRs) automatically converts to the F1 (unmarried sons and daughters of U.S. citizens) category upon the naturalization of the parent.

The automatic conversion is good if you’re a national of any country – except for the Philippines. Based on the latest visa bulletin, for other countries a conversion from F2B to F1 is advantageous because the waiting time would be cut short by over one year (about 4 months for Mexico).

But for the Philippines, the cut-off date for F2B beneficiaries is September 1, 2001, while for F1 it is April 15, 1997. In other words, for Philippine nationals the conversion actually adds more than 4 years to the wait since the F1 category is more backlogged than F2B.

Section 6 of the CSPA remedies this inequity by allowing the F2B beneficiary to “opt-out” of the conversion by electing to remain an F2B beneficiary. This is done through a written request to the officer in charge of the appropriate U.S. embassy, who then issues a decision and sends it to the beneficiary and the Department of State’s visa issuance unit.

If the opt-out request is approved, the beneficiary’s eligibility will be determined as if the parent had never naturalized and the beneficiary will remain in F2B.

To illustrate, let’s say X is the 33-year old son of a Filipino mother who recently became a naturalized U.S. citizen. On August 30, 2001, the mother filed an I-130 petition on X’s behalf when X was only 23 years old. The F2B priority date is already current, but since his mother recently naturalized, X automatically moved to the F1 category where the waiting time is longer by over 4 years compared to F2B. X can avoid the backlog in F1 by opting out of the conversion by sending a formal request to the USCIS in Manila.

This provision of the CSPA applies retroactively, that is, even to those F2B preference petitions filed before the law was passed on August 6, 2002, and regardless of the age of the beneficiary. Note that the opting-out can be done even after the conversion takes place because the law specifically allows a conversion to be revoked.

It used to be that only beneficiaries of petitions initially filed in F2B could benefit from opting out, and not those who started out in F2A and later moved to F2B when they turned 21 years old. This interpretation resulted in older brothers and sisters being able to immigrate under F2B much earlier than their younger siblings who had to wait longer under F1.

To illustrate, say X in the example above was under 21 when his mother filed the I-130. Since he started out in the F2A category and converted to the F1 category when his mother naturalized, under the old interpretation of Section 6 he could not opt out of the conversion. He would have to remain under F1 and wait until a visa becomes available.

Because of the unfairness that resulted, in 2006 the USCIS reevaluated its reading of Section 6 and later allowed it to be applied to all beneficiaries 21 years and over in the F2B category, regardless of whether they started out as F2A or F2B.

In the example above, this means that it does not matter if X was under 21 or over 21 at the time the I-130 was filed by his mother. If he turns 21 before his mother naturalizes, his petition would be automatically transferred to F1 category, but he can then opt-out if it is more beneficial to remain in F2B.

Recent CSPA Decision Favors Aged-Out Children

A child who has turned 21 may still be considered younger than 21 years old under the Child Status Protection Act (CSPA). Being considered younger than 21 for immigration purposes significantly reduces the wait time to become a lawful permanent resident.

Locking a child’s age at younger than 21 occurs when a United States citizen parent petitions an unmarried child before he or she turns 21 but the child’s adjustment of status or admission as an immigrant takes place after reaching 21.

Another situation when a child’s age is frozen under CSPA is when a lawful permanent resident parent is the beneficiary of a visa petition or files a visa petition for his or her child under 21. The number of days between the filing of the petition and the approval is subtracted from the child’s age on the date that the priority date of the child or parent becomes current. If the difference is less than 21, the child benefits from the CSPA.

An additional requirement for CSPA purposes is that the child must have “sought to acquire” lawful permanent resident status within one year of the visa number availability. This is the date when the visa petition is approved and the priority date is current as indicated in the Department of State Visa Bulletin.

The phrase “sought to acquire” has been interpreted by the Department of Homeland Security (DHS) and the Department of State (DOS) narrowly. The DHS has stated that the phrase refers to the filing of an adjustment of status application.

The DOS has said that for purposes of consular processing it means the submission to the National Visa Center of the Form DS-230 Part I by the child or by the child’s parent or Form I-824 by the parent in cases where the child is following to join.

Many CSPA applications have been rejected or denied because of such strict interpretation.

In a recent unpublished decision by the Board of Immigration Appeals, the term “sought to acquire” was given a broad meaning.

In this case, Matter of Murillo, the visa petition of his father had a priority date of October 16, 1995 and was approved on August 8, 1996 when Murillo was 12 years old. A visa number became available on June 1, 2003 when he was 19 years old. However his attorney whom he retained to file his adjustment of status filed his application more than 20 months from the date when a visa number became available.

The DHS concluded that Murillo was not eligible for CSPA benefits because he did not file his adjustment application within a year from June 1, 2003. But the Immigration Judge ruled that he was eligible because the requirement of “sought to acquire” could be satisfied by circumstances short of filing the application. The hiring of the attorney to prepare the application satisfied this requirement.

The Board of Immigration Appeals agreed with the Immigration Judge. The Board said that the term “sought to acquire” was broad enough to include substantial steps (such as hiring an attorney who completed the form and obtaining a money order for the filing fee) toward the filing of the adjustment application within the required one-year period. To hold otherwise, the Board said, “would undermine the very purpose and intent of the statute which was to protect an alien ‘child’ from ‘aging out’ due to ‘no fault of her own’.”

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