1. THE CHILD STATUS PROTECTION ACT
Charles Wheeler
Catholic Legal Immigration Network, Inc.

2. CSPA BENEFITS Prevents immediate relatives from aging out
Allows some children of LPRs to retain 2A preference classification
Allows some other children to retain derivative classification
Mitigates disadvantage of petitioner’s naturalizing (in most cases)
Helps VAWA beneficiaries and derivative asylees/refugees 2 2

3. CSPA NOT APPLICABLE Nonimmigrant derivatives NACARA HRIFA
Fiances (K visas)
Children of LPRs (V visas)
NACARA
HRIFA
Special Immigrant Juveniles
Family Unity
Cuban Adjustment

4. IMMEDIATE RELATIVES
Child of USC remains immediate relative if under 21 when I-130 filed
Age is frozen at time of filing, regardless of when it was filed
Doesn’t protect children who marry
Check to see if any 1st preference cases should be reclassified as IRs 4 4

5. EXAMPLE
Martha, a U.S. citizen, filed an I-130 petition for her unmarried 20-year-old son on November 15, She received a receipt notice from the Service Center and has heard that it could take approximately six months to approve the petition. Her son will turn 21 tomorrow. What advice do you give her? 5 5

6. IMMEDIATE RELATIVES
Child of LPR becomes immediate relative if under 21 when parent naturalizes (2A => IR) and I-130 previously filed
CSPA prevents immediate relative from aging out
If derivative, LPR must file separate I-130
CSPA should lock in age on date of naturalization, not date of filing subsequent I-130, but not USCIS policy 6 6

7. EXAMPLE
Three years ago Manuel, an LPR from Mexico, filed an I-130 for his son, Pedro, when Pedro was only 17 years old. Six months ago, Manuel naturalized, allowing Pedro to file for adjustment of status as an immediate relative. But just last week, before the adjustment interview could be scheduled, Pedro turned 21. What immigration category is Pedro in and what advice do you have for him? 7 7

8. EXAMPLE
Same facts, only Manuel filed the I-130 for his wife, with Pedro being named as a derivative child. When Manuel naturalized, Pedro was under 21. But he turned 21 before a new I-130 could be filed in his behalf. What is Pedro’s immigration category?

9. IMMEDIATE RELATIVES
Married child of USC converts to immediate relative if under 21 when child divorces (3rd => IR)
CSPA prevents immediate relative from aging out
CSPA locks in age on date of divorce 9 9

10. EXAMPLE
Two years ago Manny, a U.S. citizen, filed an I-130 for his married son, Peter. At the time, Peter was 19. A year later, Peter divorced his wife. Will the divorce allow Peter to immigrate faster? What if Peter turned 21 last month?

11. 2A CLASSIFICATION
CSPA freezes age of children of USCs (IRs) on date I-130 petition filed or petitioner naturalizes
CSPA freezes age of children of LPRs (2As) on date priority date becomes current for the 2A category
Use “adjusted” or CSPA age, not biological age
Must know child’s date of birth, priority date, approval date, date 2A became current
Must apply mathematical computation 11 11

12. 2A CLASSIFICATION
Adjusted age = biological age minus time I-130 was pending at Service Center
Add all time between priority date and approval notice
Calculate adjusted date of birth by adding time to biological date of birth
When was 2A current (first day of month)?
If under 21 on that date, frozen as 2A
Must seek LPR status within 1 year 12 12

13. EXAMPLE
Maria, an LPR from Mexico, filed an I-130 for her daughter on March 1, She received an approval notice dated September 1, Her daughter was born on August 9, She recently came to you because she learned there is a law that might help her. You find out that the 2A family preference category became current in January What advice do you give them? 13 13

14. WORKSHEET Date of birth? August 9, 1987 Time I-130 pending? six months
Adjusted date of birth? February 9, 1988
Date turn 21? February 9, 2009
Date visa current? January 1, 2009
Age on that date? 20 years, 10 mos, 22 days
Sought LPR status w/in one year? 14 14

15. ONE-YEAR FILING REQUIREMENT
One year from date become current or petition approval to file:
I-485
I-824
DS 230 Part 1
But see Kim decision
Sought to acquire interpreted broadly
USCIS and DOS not following it 15 15

16. MATTER OF JI YOUNG KIM File #A77-828-503 (unreported BIA)
Did not file for adjustment w/in 1 year
Sought assistance of attorney w/in 1 year
BIA held it was sufficient
“sought to acquire” LPR status w/in 1 year
Think creatively

17. USA PATRIOT ACT § 424
I-130 filed on or before September 11, 2001 and turned 21 after that date
Subtract additional 45 days from child’s age (or add to date of birth)
Use together with CSPA formula

18. EXAMPLE
Michele, an LPR, applied for her daughter on August 1, Petition was pending two years. Daughter turned 21 on October 1, Second preference became current on November 1, Using her CSPA age, she turned 21 on October 1, But first subtract 45 days from daughter’s age, then two years. She was under 21 on November 1, 2006 and retains 2A status.

19. DERIVATIVES
Derivatives in 1st, 2nd, 3rd and 4th preference categories apply same adjusted age principle and formula as 2A
Current means first day of month when principal becomes current
Must apply within 1 year of availability 19 19

20. EXAMPLE
Lynn filed a fourth preference petition for her sister eleven years ago, and it is just now current. Unfortunately, her sister’s child turned 21 three months ago. Is there any additional information you would want to know before advising them? 20 20

21. EMPLOYMENT-BASED Apply same principles as for family-based derivatives
Calculate derivative child’s age on date employment-based visa becomes current for parent
Subtract time I-140 pending, which is time between filing and approval (don’t use priority date)

22. VISA RETROGRESSION
Affects one-year filing requirement, as well as child’s age calculation
If let one year pass before seeking LPR status and then visa retrogresses, no help
If visa retrogresses during one-year window, new one-year period begins once visa becomes available again
Calculate age on date visa available 2nd time

23. EXAMPLE
David’s 2A priority date became current on August 1, He took no action and the visa retrogressed in June The visa became current again in October David has until October 1, 2008 to seek LPR status. Calculate David’s adjusted age on October 1, 2007 to see if he was still under 21 and qualifies for a 2A visa.

24. RETENTION OF PRIORITY DATE IF DERIVATIVE AGES OUT
Statutory language: when derivatives age out, they automatically convert to the appropriate category and retain priority date
USCS interpretation => only applies to 2A’s who age out, not to others
Opposing view => applies to all derivatives
Maria Garcia decision by BIA 24 24

25. MARIA T. GARCIA File #A79-001-587 (unreported BIA)
Derivative child in 4th preference aged out
Principal (mother) becomes LPR and files new I-130 for child
BIA held that CSPA allows child to automatically convert to appropriate visa category and retain priority date
2B category already current 25 25

26. EXAMPLE
Sam filed a 3rd preference petition for his married son, Juan. On the date Juan and his wife immigrated, their eldest daughter, Maria, was 24 and couldn’t immigrate as a derivative. Juan filed a new I-130 for his daughter in the 2B category. He included a copy of the first I-130 approval notice and asked the Service Center to retain the priority date, thus making her current. 26 26

27. PENDING FEDERAL LAWSUITS
CASES CERTIFIED TO BIA
MATTER OF WANG - Family Based
MATTER OF PATEL - Employment Based
PENDING FEDERAL LAWSUITS
Costelo v. Chertoff
Cuellar de Osorio v. Scharfen
For more information please see

28. RELIEF FOR FILIPINOS
1st preference category backlogged farther than 2B for Filipinos and sometimes Mexicans
When parent naturalizes, unmarried sons and daughters over 21 move from 2B to 1st unless elect to stay in 2B
File election with local district office if adjusting status or consulate in Manila
Can elect regardless of when parent naturalized 28 28

29. CURRENT INTERPRETATION
Can be under 21 or over 21 when I-130 filed
If over 21 when parent naturalizes, convert to 1st preference category (even if otherwise qualify for 2A status using adjusted age). Can’t elect to stay in 2A, but must convert to F-1. But seeking USCIS confirmation and interpretation of Aytes memo.
1st preference backlogged farther than 2A for all nationalities (March 2009)
Don’t naturalize if will adversely affect child
NVC sending out confusing and erroneous letters 29 29

30. EXAMPLE
Jose, an LPR from Mexico, filed an I-130 for his daughter. At the time, she was 17 years old. The I-130 was pending for four and a half years before it was approved. The daughter is now 23, but according to her adjusted age, she is only 19 and is still in the 2A category. Her visa is almost current, but her father naturalized last month. What visa category is she in now? 30 30

31. IMPLEMENTATION
CSPA applies to petitions filed before, on, or after 8/6/02
Applies to petitions approved before, on, or after 8/6/02
Applies to petitions where beneficiary turned 21 before, on, or after 8/6/02
Applies to petitions approved before 8/6/02 if I-485 or IV application filed and no final adjudication by that date 31 31

32. IMPLEMENTATION
Avila-Perez, 24 I&N Dec. 78 (BIA 2007): not required to have filed for adjustment of status or immigrant visa prior to 8/6/02 if aged out before that date
CSPA applies to all who were ever an immediate relative
CSPA applies to 2A and derivatives, so long as comply with one-year filing requirement 32 32

33. EXAMPLE
Alberto, a naturalized U.S. citizen, petitioned for his 20-year-old Mexican son in April His son turned 21 while the petition was still pending and he converted to the 1st preference. He has been waiting since then for the visa to become available. Under the revised policy, he is an immediate relative and can now file to adjust or consular process.

34. IMPLEMENTATION (LATEST USCIS MEMO)
Children of LPRs who were under 21 using CSPA age when visa became current can also take advantage of new policy decision
Must have filed for LPR status w/in 1 year
If became current on or after August 7, 2001 and did not file because adversely affected by old policy, can file now
If filed and were denied, can file to reopen

35. EXAMPLE
Daniel, an LPR from Mexico, filed an I-130 for his son on June 15, It was pending two and a half years. The son turned 21 on August 1, The 2A became current in September The son was under 21 using his CSPA age on that date. He did not file for adjustment because he had turned 21 and did not have a petition or application pending on August 6, He can file now and the one-year rule is waived.

36. EXAMPLE
Same facts, only the son filed for adjustment claiming the CSPA applied to him. The adjustment application was denied based on the old CSPA interpretation. He can file a motion to reopen the denied application without having to pay a fee.

37. WHO IS HELPED?
Mexicans and Filipinos who were ever classified as immediate relatives and thought they converted to 1st preference
Mexicans and Filipinos who turned 21 before August 6, 2002 and should have been classified as 2A using CSPA age but had no petition pending on August 6, 2002
Very few person affected by new policy

38. CSPA AND CHILDREN OF ASYLEES AND REFUGEES
CSPA protects most derivative asylee/refugee children from “aging out”
“For any asylum or refugee application filed after August 6, 2002, a derivative child will retain classification as a child for purposes of … Section 209 adjustment.”
If derivative aged out and not protected by CSPA, s/he would need to do nunc pro tunc asylum application in order to adjust
Children who marry lose CSPA protection

39. CSPA AND CHILDREN OF ASYLEES AND REFUGEES
Look at the date the principal alien applied for asylum or refugee status
If child named on application, unmarried and under 21 on that date, child preserves derivative status until application approved
Child also qualifies to adjust as derivative asylee

40. ASYLEE DERIVATIVES
Child under 21 at time asylum application filed, named on application, and in the U.S.
Continues to be eligible as derivative if I-589 pending on or filed after 8/6/02
As derivative asylee, files for adjustment after one year, regardless of age
Cannot take advantage of CSPA if asylum application approved prior to 8/6/02 unless I-730 or I-485 pending on that date or age out afterward

41. ASYLEE DERIVATIVES
Child under 21 at time asylum filed and outside U.S.
Must file I-730
If asylum granted on or after 8/6/02, child remains derivative (doesn’t age out)
If asylum granted before 8/6/02 and child turned 21 before 8/6/02, no age-out if I-730 pending on 8/6/02

42. DIVERSITY VISA LOTTERY
DV derivatives apply adjusted age formula
Time pending is period between first day of DV mail-in and date of congratulatory letter
Subtract that period from the child’s age

43. VAWA
Immediate relative children applying as principals do not age out if under 21 on date I-360 filed
Same with immediate relative derivatives
Question on effect of prior I-130 for child: Can consider to be immediate relative for VAWA if under 21 when I-130 filed but now over 21 and want to file I-360?

44. VAWA
Preference category children apply same age-out and adjusted age principles as family-based
Subtract time applicable petition was pending to determine if convert from 2A to 2B or lose derivative status
Question of whether to apply time pending for prior I-130 or only I-360