INS and State Department Interpret Child Status Protection Act

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

INS AND STATE DEPARTMENT INTERPRET CHILD STATUS PROTECTION ACT
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

Both the Immigration and Naturalization Service and the Dept. of State have issued preliminary guidance on the Child Status Protection Act (CSPA), which was signed by President George W. Bush in Aug. 2002 (for a description of the law, see "President Signs Bill Protecting Visa Applicants from Aging Out," Immigrants' Rights Update, Sept. 10, 2002, p. 6). This guidance comprises memoranda from Johnny Williams, INS executive associate commissioner, Office of Field Operations, and Joseph E. Langlois, INS director, Asylum Division, and a cable from the Dept. of State. The major provisions of these documents are summarized below.

Immediate Relatives. The INS and the State Dept. will use the age of the beneficiary on the date the Form I-130, Petition for Alien Relative, is filed to determine if he or she qualifies as an immediate relative child. For example, if a U.S. citizen files an I-130 for a 20-year-old daughter, she will remain permanently eligible to immigrate as a child even if the adjustment or consular processing occurs after she turns 21, as long as she does not marry.

Children who are second preference beneficiaries and whose parents naturalize will be able to use their age on the date of their parent's naturalization to determine if they will be classified as immediate relatives. For example, if a lawful permanent resident files an I-130 for a 17-year-old son and then naturalizes when the son is 20, the son will remain eligible to immigrate as an immediate relative, even if he had turned 22 by the date of his adjustment or consular interview.

Third preference married children of U.S. citizens can now use their age on the date of the termination of a marriage when applying for adjustment or an immigrant visa. For example, if a U.S. citizen files a Form I-130 for his 18-year-old married son and that son later divorces before turning 21, the son can still immigrate as an immediate relative child, even if the adjustment or consular processing occurs after he turns 21.

Preference and Diversity Visa Categories. Both the INS and the State Dept. narrowly interpret the CSPA provision that protects some children from "aging out" of the family preference, employment-based, and diversity categories. As expected, both agencies define the date on which an immigrant visa becomes available as the date on which the beneficiary's priority date becomes current. The Williams memorandum specifies that this is the first day of the month in which the priority date becomes current. A beneficiary's age then becomes "locked in" on the date that his or her priority date becomes current, less the number of days that the petition had been pending, as long as the beneficiary seeks to acquire permanent resident status within one year of such availability. For example, if a parent filed an I-130 in 1998 when the child was 20 years old, and the priority date became available today, and the I-130 was not adjudicated until today, the beneficiary's "age" would be his or her age on the date the priority date became current (24 years) minus the period of time the I-130 was pending (4 years), which means the beneficiary's age would be deemed to be 20.

Unfortunately, in interpreting the CSPA language referring to the number of days that a petition is pending, both agencies instruct that this calculation is made by counting only the days that elapse between the date the I-130 is filed and the date it is adjudicated. Any additional time that is accrued while an adjustment or visa application is being processed and decided is not counted. (For a broader interpretation, see Tapia-Ruano and Berg, "Special Rules for Children of LPRs and Other Child Derivatives Under the Child Status Protection Act of 2002," AILA Immigration Law Today, Oct. 2002, p. 625.)

Both agencies state that the law requires that the beneficiary who wants to take advantage of this provision of the law must apply for adjustment of status or an immigrant visa within one year of the date that the priority date became available. However, neither agency clarifies that beneficiaries who would otherwise benefit from the provisions of the CSPA but whose cases were more than one year old on the date of the CSPA's passage should be "grandfathered" by counting one year from the date of the passage of the CSPA.

To calculate the age of derivative children of diversity visa (DV) applicants under the law, the State Dept. starts with the derivative beneficiary's age on the first day on which the principal applicant's selection number becomes eligible for visa processing. It will then subtract the amount of time that elapses between the first day of the DV mail-in application period for the relevant year and the date on the letter notifying the principal applicant that his or her application has been selected.

Although subject to revision, the State Dept.'s current position is that V visa applicants are not eligible for the benefits of this provision of the CSPA.

Unmarried Sons and Daughters of Naturalized Citizens. The unmarried sons and daughters of naturalization applicants can request that automatic conversion from second preference to first preference not occur at the time of their parent's naturalization. This option benefits the sons and daughters of Filipinos who are disadvantaged by automatic conversion.

For example, if a permanent resident files an I-130 for his 14-year-old unmarried Filipino son and then naturalizes, the son's immigrant category would automatically convert from the second preference to the first preference. For Aug. 2002, the second preference cutoff for Filipino unmarried sons and daughters of permanent residents is Dec. 3, 1993, but the first preference cutoff for Filipino unmarried sons and daughters of American citizens is Nov. 1, 1989. In this case, the son would likely request that his status not be automatically converted from second to first preference.

Asylees and Refugees. Children who turn 21 after an asylum application is filed but prior to its adjudication are still considered to be eligible for derivative asylum status. To qualify the child must be under the age of 21 on the date that his or her parent, the principal asylum applicant, files the asylum application. The child need not have been included as a dependent on the parent's application at the time of filing; however, he or she must have been included prior to the adjudication. The filing date is defined as the date on which the INS receives the asylum application. If the filing date in the INS's computerized Refugee Asylum Processing System (RAPS) and the receipt date stamped on the Form I-589 conflict, whichever date is earlier should be used for CSPA purposes.

Additional guidance will be forthcoming regarding the impact of the CSPA on procedures for granting asylum nunc pro tunc to children who turn 21 after the adjudication of a parent's asylum application but before the parent's application for adjustment of status.

Effective Date. The law applies to cases pending with the INS or the State Dept. on or after the date of enactment. This includes any petition already approved by the INS, but where no final action on the beneficiary's application for adjustment or for an immigrant visa has been taken.

The State Dept. specifies that, at present, a beneficiary whose immigrant visa application was denied prior to the date of enactment because he or she "aged out" or was otherwise found ineligible, cannot benefit from the provision of the law pertaining to the preference and diversity visa categories. Similarly, a beneficiary of an approved petition who never applied for a visa prior to the law's enactment because he or she "aged out" will receive no benefit under this provision. However, a beneficiary whose immigrant visa application was filed before the date of enactment but was refused under Immigration and Nationality Act section 221(g) will receive the benefit of this provision as long as the application was otherwise pending on the date of enactment.

"The Child Status Protection Act" (Williams memo), Sept. 20, 2002; "H.R. 1209: Child Status Protection Act" (Langlois memo) Aug. 7, 2002; "Child Status Protection Act of 2002: ALDAC #1" (State Dept. cable), undated (posted on AILA InfoNet at Doc. No. 02090940 (Sept. 9, 2002)).