Practical Guide to the Child Status Protection Act (CSPA) - Part 3

Children of Lawful Permanent Residents

CSPA Age Formula

The CSPA established also new rules in determining whether a child can still be considered as a principal or derivative child beneficiary of a family-based petition, employment-based petition, or diversity visa application.

To compute for the age of the principal or derivative child beneficiary of a family-based petition, employment-based petition, or diversity visa application, the law states that we must first determine the age of the child on the date on which an immigrant visa number became available for the child, or in the case of derivatives, on the date on which an immigrant visa number became available for the child’s parent. Then, we must subtract the number of days in the period during which the applicable petition was pending. For this formula to apply, however, the beneficiary child must have sought to acquire lawful permanent resident status within one year of the visa availability date.

Meaning of phrase “date on which an immigrant visa number became available”

Before the age based on the CSPA formula can be determined, it is necessary to identify an important variable that will be used in the calculation: the date on which an immigrant visa number became available. It is at this point where the age calculation begins, to arrive at the age that should remain frozen throughout the application process.

The “date on which an immigrant visa number became available” is either the first day of the month of the State Department’s Visa Bulletin that indicates the availability of visas for the preference category involved, or the approval date of the immigrant petition if a visa is already available on such approval date, whichever is later. The State Department defined “visa availability” as requiring “both a current priority date and an approved petition.”

Effect of Retrogression

As stated, the visa availability date is generally the first day of the month when visas became available after approval of the petition, or the petition approval date itself if visas were already available at the time. It is from this date that the beneficiary has one year within which to seek to acquire lawful permanent resident status by filing either an adjustment application, immigrant visa application, or I-824 application.

Certain cases exist, however, where retrogression of visa numbers comes into play. These cases involve regression of visa number availability within the one-year window during which the beneficiary is required to seek lawful permanent resident status. The retrogression, or what may be considered a “temporary suspension” on the issuance of visas for a specific preference category, brings about two possible visa availability dates: the first conforms with the general rule and falls on the date a visa first became available; the second, as an exception, falls on the second time a visa became available after the retrogression.

According to the USCIS, if a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the officer should retain the Form I-485 and note the date a visa number first became available. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a child using the visa availability date marked on Form I-485, as long as the I-485 was filed within one year of that visa availability date. If, however, an alien did not file a Form I-485 prior to the visa availability date regressing and then files a Form I-485 within one year of when the visa availability date again becomes current, the alien’s CSPA age is determined using the subsequent visa availability date.

The State Department adopted the same position regarding the issue. According to the State Department, in order to seek to acquire lawful permanent residence, an alien beneficiary must actually have one full year of visa availability. If a visa availability date retrogresses (e.g., employment-based third preference numbers are unavailable) or the preference category changes (e.g., F-1 converts to F-3) within one year of visa availability and the visa applicant has not yet sought to acquire LPR status, then once a visa number becomes available again the one year period starts over. The alien beneficiary’s age under the CSPA is re-determined using the subsequent visa availability date.

Based on the above guidelines from the USCIS and the Department of State, respectively, it is clear that the date a visa first became available should generally be followed, unless – by way of exception – the beneficiary only sought to acquire lawful permanent resident status after the retrogression has been lifted and the priority date becomes current a second time, in which case he or she is given a fresh full year within which to apply, and the visa availability date to be used is the second or subsequent date.

Meaning of phrase “period during which the applicable petition was pending”

According to the USCIS, the “period during which the applicable petition was pending” is the number of days between the date that the petition is properly filed and the date approval is issued on the petition, including any period of administrative review.

In the case of a family-based petition, the “period during which the applicable petition was pending” is the period of time between the date of filing of the I-130, Petition for Relative, and the date of final approval of the petition, including any period of administrative review.

In the case of an employment-based petition, the date of filing of the labor certification application is not relevant for purposes of computing the age of the child in an employment-based case. Based on the USCIS memorandum, the “period during which the applicable petition was pending” for the I-140, Petition for Alien Worker, is counted from the date that the petition was properly filed (receipt date and not priority date) until the date the final approval was issued on the petition, including any period of administrative review.

In the case of diversity visa applications, the USCIS takes the position that the “period during which the applicable petition was pending” is the period between the first day of the diversity visa mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal alien that his/her application has been selected (the congratulatory letter). That period should then be subtracted from the derivative alien’s age on the date the visa became available to the principal alien.

Meaning of phrase “has sought to acquire”

For the CSPA age formula to apply, it is required that the beneficiary has sought to acquire lawful permanent resident status within one year of the visa becoming available for the relevant petition.

The proviso requiring that the alien “has sought to acquire” lawful permanent resident status within one year of availability of visa numbers has been interpreted to mean that the alien beneficiary has applied for adjustment of status, an immigrant, visa, or has been the beneficiary of an I-824 within the given period.

Please note that the adjustment of status application, an immigrant visa application, of Form I-824 application need only be filed, and not necessarily approved. The law requires that an alien beneficiary seek to acquire LPR status within one year, not that the alien actually did so acquire such status within one year. Therefore if the alien files a DS-230 but has his or her immigrant visa refused or is the beneficiary of an I-824 that is denied, the act of filing the DS-230 or I-824 still satisfies the statute.

The proviso has also been interpreted to include not only the action of filing an immigrant visa application or an adjustment application. The BIA, in an unpublished decision, has interpreted the meaning of the phrase “has sought to acquire” to include the act of seeking the assistance of an attorney in the preparation of an adjustment application. Additionally, the BIA has recently held that a beneficiary is considered to have sought to acquire permanent resident status when, during the one-year period, he informed both the immigration judge and the BIA that he wished to file an adjustment application, even though he never actually filed the application.

Exception to the required one-year period within which to seek permanent residence

Generally, to be eligible for CSPA protection, the child must have sought to acquire permanent residence within one year of a visa becoming available. As stated previously, this requirement has been interpreted by the government as having filed a Form I-824, Application for Action on an Approved Application or Petition, a Form I-485, Application to Register Permanent Residence or Adjust Status, or an application for immigrant visa within one year of a visa becoming available.

Recently, however, the USCIS stated in one of its internal memoranda that beneficiaries who did not apply for permanent residence within one year of the visa becoming available may still apply under the CSPA even after one year of visa availability, provided certain conditions have been met.

According to the USCIS, while individuals who did not apply for permanent residence within one year of visa availability are generally not able to apply under the CSPA, a “recent change in interpretation of the CSPA” now permits certain individuals “to apply outside of this one year period.” In order for a person to be eligible to apply for permanent residence after the one-year period, USCIS requires that the following concur:

• The person applying is the beneficiary (principal or derivative) of an immigrant petition that was approved prior to August 06, 2002;
• The person had not received a final decision on an application for permanent residence based on that petition prior to August 06, 2002;
• The visa became available on or after August 07, 2001; and
• The person has met all of the other eligibility requirements of the CSPA.

Illustration of the proper application of the CSPA age formula

Maria is the beneficiary of an employment-based petition [EB-3, Philippines, Schedule A – Registered Nurse] that was filed on July 27, 2007 and approved on December 16, 2008. At the time of filing of the petition, her twin children, Jose and Pedro, were minors or below 21 years old. They were born on January 11, 1992.

Her priority date first became current on May 01, 2014. On the basis of the approved petition filed by her employer, Maria adjusted her status to that of a lawful permanent resident on May 16, 2014. She currently holds such status and still has not been naturalized.

On June 24, 2014, Maria filed Form I-824 with the USCIS so that her children can follow and join her in the United States as her dependents. Form I-824 was approved on July 29, 2014.

On January 11, 2015, Jose and Pedro both aged out or turned 21 years old while their following-to-join case is still being processed at the National Visa Center.

The filing on June 24, 2014 of the I-824 application on behalf of Jose and Pedro within one year of visa availability (i.e., May 01, 2014) amply demonstrates that they “sought to acquire” lawful permanent resident status within the required period under the CSPA. Having established the eligibility of Jose and Pedro for the age-out protection under the CSPA, their age may now be calculated using the formula and using the visa availability date as a point of reference. As stated, the calculation is done by taking the beneficiary’s age on the date a visa number first became available and subtracting from this the number of days that the applicable petition was pending.

In the case of Jose and Pedro, while the immigrant petition filed on July 27, 2007 by the employer on behalf of their mother, Maria, was approved on December 16, 2008, the priority date of the case became current only on May 01, 2014. Since “visa availability” requires “both a current priority date and an approved petition,” the visas, in this case, should be considered to have become available on May 01, 2014, and not on December 16, 2008, the date of approval of the immigrant petition. The CSPA ages of Jose and Pedro, therefore, should be computed as of May 01, 2014, the date the visas first became available in this case.

Jose and Pedro were born on January 11, 1992. As of May 01, 2014, they were both about 22 years old, 3 months, and 20 days old. The I-140 petition, which was filed on July 27, 2007, and approved December 16, 2008, was pending for about 1 year, 4 months, and 19 days.

Subtracting the two values above, the CSPA age of Jose and Pedro is calculated as follows:

Based on the above calculation, Jose and Pedro should be considered minors and given preferential status as unmarried minor children/ dependents of their lawful permanent resident mother in pursuing their immigrant visa applications. Their age should remain locked in or frozen at 20 years, 11 months, and 1 day old throughout the entire application process.

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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios. He has more than 20 years of experience and a successful track record in handling CSPA cases, waiver cases, humanitarian reinstatement cases, employment-based and family-based petitions, PERM and naturalization applications, as well as other types of immigration applications.

If you want to know more about this topic, then we invite you to schedule an appointment for your free initial office consultation by calling us at (626) 331-8188.

The above article does not and is not intended to constitute legal advice for a specific immigration problem, and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.

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