1. CHILD STATUS PROTECTION ACT
Name
Title
Section

2. CSPA UPDATE Overview of Basics One-Year Filing Requirement
Retention of Priority Date
Visa Retrogression
F-2A Opt Out
Effects of Petitioner’s Naturalizing

3. CSPA Basics Once an immediate relative, always an immediate relative
F-2As and derivatives protected from aging out if under 21 using “adjusted age”
Unsettled law if over 21
Mitigates disadvantage of petitioner’s naturalizing

4. Protection for IRs If I-130 filed by USC for unmarried child under 21
If I-130 filed by LPR for F-2A child and petitioner naturalizes while child under 21
If I-130 filed by USC for married child under 21 and child divorces while under 21

5. Protection for IRs
Martha, a U.S. citizen, filed an I-130 petition for her unmarried 20-year-old son on December 3, She received a receipt notice from the Service Center and has heard that it could take approximately four months to approve the petition. Her son will turn 21 tomorrow. What advice do you give her?

6. Protection for IRs
Three years ago Manuel, an LPR from Mexico, filed an I-130 for his son, Pedro, when Pedro was only 17 years old. Manuel naturalized six months ago, when Pedro was 20 years old, allowing Pedro to file for adjustment of status as an immediate relative. But just last week, before the adjustment interview was scheduled, Pedro turned 21. What advice do you have?

7. Protection for IRs
Same facts, only Manuel filed an I-130 for his spouse with Pedro named as a derivative. Manuel naturalized when Pedro was 20. Manuel recently filed an I- 130 for Pedro, but just after he had turned What immigration category is Pedro in?

8. Protection for IRs
Helen, a U.S. citizen, filed an I-130 for her 20-year-old married daughter, Sarah. Her daughter’s divorce became final last month, before Sarah turned 21. What immigration category is Sarah in?

9. Protection for F-2As
Age not frozen on date I-130 filed but on date F-2A becomes current
Use adjusted age, not biological age
Subtract time I-130 was pending (or add time to date of birth)
Need to know priority date, notice of approval date, date visa became available
If under 21, remain in F-2A
One year to seek LPR status

10. Protection for F-2As
Maria, an LPR from Mexico, filed an I-130 for her daughter on August 1, She received an approval notice dated December 1, Her daughter was born on November 9, She wants to file for adjustment for her daughter, but is concerned because she is now over You look at the Visa Bulletin and discover that the F-2A family preference category became current in January Advice?

11. Protection for F-2As Date of birth? November 9, 1991
Time I-130 pending? four months
Adjusted date of birth? March 9, 1992
Date turn 21? March 9, 2013
Date visa current? January 1, 2013
Age on that date? under 21
Final step: seek LPR status w/in one year

12. One-Year Filing Requirement
One year from date became current or petition approval to file:
I-485
I-824
DS 230 Part 1 or DS 260
Derivatives must also file within one year
Recent BIA case decision 12 12 12

13. One-Year Filing Requirement
Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012)
Must file I-485 within 1 year
Or must show “extraordinary circumstances”
Factors beyond applicant’s control
Example: completed all documents and attorney failed to timely file

14. CSPA and Derivatives
Derivatives in 1st, 2nd, 3rd, 4th preference categories, as well as employment-based, apply same formula as F-2As
Subtract time petition was pending from child’s age (or add to date of birth)
Compare to when priority date current
If under 21, still a derivative and one year to seek LPR status

15. Example
Lynn filed a fourth preference petition for her sister eleven years ago, and it is just now current. Unfortunately, her sister’s child, Elizabeth, turned 21 three months ago. Is there any additional information you would want to know before advising them? 15 15 15

16. Retention of Priority Date If Derivative Ages Out
Section 203(h)(3): when derivatives age out, “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition”
USCS interpretation  only applies to F-2A’s who age out, not to others
Opposing view  applies to all derivatives 16 16 16

17. Matter of Wang 25 I&N Dec 28 (BIA 2009)
Retention of priority date limited to same petitioner filing for same beneficiary in same preference category
Only applies to F-2A derivatives
No automatic conversion for other derivatives
No Congressional intent to expand

18. 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 F-2B category. According to the BIA, Maria cannot retain the earlier priority date. Maria will be in the F-2B category with a recent priority date. 18 18 18

19. Split in Federal Circuits
Li v. Renaud, 654 F.3d 376 (2nd Cir. 2011)
Statute unambiguous, so no deference to USCIS
“Converted to the appropriate category” means to an available category, not to another family-sponsored category based on a petition filed by a different petitioner
No appropriate category when derivative (other than F-2A) ages out
Same result as Matter of Wang

20. Split in Federal Circuits
Cuellar de Osorio v Mayorkas, 2012 U.S. App. Lexis (9th Cir. 2012)
Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011)
Statute unambiguous so gave no deference to agency interpretation or BIA
Held that 203(h)(3) applied to all derivatives, not just F-2As
Derivative converts to F-2B upon LPR parent filing new I-130, retains original priority date

21. What To Do Now? USCIS has until Jan. 20 to file writ of certiorari
No implementation while pending appeal
Clients in removal proceedings in 5th and 9th circuits
If S.Ct. grants writ
If S.Ct. declines writ

22. Visa Retrogression Visa Bulletin does not progress steadily
Visa Bulletin may “retrogress” (i.e., cut-off dates can move back in time)
Significant retrogression in most family- based visa categories in the January Visa Bulletin and more in February 2011
Still not caught up with December 2010 for “all chargeability areas”

23. Visa Retrogression and Consular Processing
Even if petition approved, visa cannot be issued unless priority date current
File may be at NVC or at consular post
If the file is at the NVC:
Continue to respond to all requests
Pay fee bills (will not lose money paid)
Notify NVC of any changes in address or

24. Retrogression and Adjustment of Status
Adjustment application filed, but priority date no longer current:
USCIS will “pre-adjudicate” the application
Case forwarded to NBC
Cannot be approved until priority date is current
Applicant can apply for EAD and advance parole

25. Visa Retrogression
Affects one-year filing requirement, as well as child’s age calculation
If visa retrogresses during one-year window, new one-year period begins once visa becomes available again
Calculate age on date visa available again
Guidance in AFM 21.2(e) 25

26. Example
David’s F-2A priority date became current on August 1, He took no action and the visa retrogressed in January The visa became current again in October Since he was prevented from satisfying the one-year requirement due to retrogression, a new year opens up on October 1, 2012, but calculate David’s age on that date. 26

27. Opt Out of Automatic Conversion #1
F-2B beneficiary may opt out of conversion to F-1 when petitioner naturalizes
Doesn’t matter if petition filed in the F-2A as long as now in F-2B
Only relevant now for Filipinos
Send letter to USCIS requesting opt out

28. Example
On April 1, 2002, Dalisay, an LPR, filed an I- 130 for her son, Bayani, who is living in the Philippines. The F-2B category became current this month, but Dalisay naturalized in December The F-1 category is backlogged at least five more years. Can Bayani opt out of the automatic conversion to F-1 and remain in the F-2B category?

29. Opt Out of Automatic Conversion #2
F-2A who is over 21 (but under 21 using CSPA) may not opt out of conversion to F- 1 when petitioner naturalizes
Zamora-Molina, 25 I&N Dec. 606 (BIA 2011)
F-1 backlogged farther than F-2A for all countries
Statute limits opt out to F-2Bs
Do not naturalize if child would be affected

30. Example
Jose, an LPR from Mexico, filed an I-130 for his daughter, Yolisma. At the time, she was 19 years old. The I-130 was pending for four and a half months before it was approved. Yolisma is now 21, but according to her adjusted age, she is only 20 and is still in the F-2A category. Her visa is now current, but Jose naturalized last week. The F-1 category is backlogged at least 17 more years. Yolisma cannot opt out of automatic conversion to the F-1 category.

31. Opt Out of Automatic Conversion #3
LPR petitioner files petition for child under 21 in F-2A category
Child is unmarried but has derivative child
LPR petitioner naturalizes
If child converts to immediate relative, cannot immigrate with derivative child
DOS allows child to opt out and stay in F-2A
Not sure if USCIS following this policy

32. Example
Fernando, an LPR, filed an I-130 for his daughter, Lupe, on June 1, On December 10, 2011, Lupe gave birth to a son, Enrique. On November 1, 2012, the F- 2A visa became current. Lupe is only 20 years old. On November 9, 2012, Fernando was sworn in as a US citizen converting Lupe to immediate relative. Can Lupe elect to stay in the F-2A and immigrate with Enrique?

33. Questions? twitter.com/cliniclegal facebook.com/cliniclegal
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