CIS Issues Revised CSPA Guidance
May 8, 2008
The US Citizenship and Immigration Service (CIS) released a new memorandum on April 30, 2008, favorably revising its previous policies interpreting the Child Status Protection Act (CSPA).
The Child Status Protection Act (CSPA) was enacted on August 6, 2002, to address the problems encountered by individuals because of lengthy processing times by the immigration service. Prior to the CSPA, an individual who turned 21 years old would “age-out” of the “child” category. This would result in either the outright loss or considerable delay in eligibility for permanent resident status. The CSPA sought to cure this “age-out” problem by expanding the definition of “child” to include certain individuals even if already over 21 years of age.
Although the CSPA became law almost 6 years ago, the CIS is still in the process of interpreting many of its provisions. As well, several court cases challenging the CIS’ interpretations have been successful, thereby necessitating their revision. Accordingly, the recent revised guidance issued by the CIS’ Acting Associate Director for Domestic Operations revises the CIS’ prior CSPA interpretation so as to comport with the various court cases.
The first change in the revised guidance involves those who can be classified as an “Immediate Relative”(IR). Generally, the IR classification is limited to the spouse, parent or unmarried child under 21 of a United States citizen. Classification as an IR is important as IRs are not subject to any visa caps, so there is never a waiting list. The revised guidance clarifies which children may continue classification as an IR despite turning 21.
First, a child may continue classification as an IR if the I-130 Relative Petition is filed on his/her behalf before turning age 21. The child’s “CSPA age” will be the filing date of the relative petition regardless of the length of processing.
Another scenario involves a child petitioned by a Lawful Permanent Resident (LPR) parent prior to the child’s 21st birthday. If the LPR parent becomes a US citizen before the child turns 21, then the child’s age is fixed at the date of naturalization and may continue to be an IR.
A third scenario involves a married child petitioned by a US citizen parent. If the married child divorces prior to age 21, then the child is classified an IR as the child’s CSPA age is fixed as of the divorce judgment date.
The revised guidance also clarifies the provision involving derivative beneficiaries on both family and employment based petitions. This provision states that a child continues to be eligible as a derivative beneficiary if their CSPA age is under 21 years based on a CSPA Age Formula. Under the CSPA Age Formula, a child’s CSPA age is calculated by deducting the length of processing on the I-130 Relative Petition or I-140 Employment Petition from the child’s age at the time a visa becomes available. As such, lengthy processing may actually aid in preserving a child’s dependent eligibility. This provision also requires that the child apply for the immigrant visa within 1 year of when a visa becomes available.
The revised guidance further clarifies that the CSPA is applicable even if the child had already turned 21 before the enactment of the law on August 6, 2002. It also applies even if the relative or employment petition was approved before August 6. It does not apply, however, if there had already been a final decision on an application for an immigrant visa before August 6.
Individuals whose applications for an immigrant visa were denied solely on the basis of aging-out may file a Motion to Reopen or Reconsider the previous application. As well, those who did not previously file an immigrant visa application but who are now eligible based on this guidance may proceed with filing for an immigrant visa despite not having done so within the required 1 year filing period.
The CIS’ revised guidance certainly implements the CSPA in a much more fair and reasonable manner. Given the possible significant time savings, individuals should consult with a qualified immigration attorney to see about eligibility as the laws involving the CSPA are very intricate.
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