Saturday, May 10, 2008

Child Status Protection Act

From Nora Privitera of the Immigrant Legal Resource Center, with many thanks from USCIS (and also CLINIC) for forwarding this information to us.  This is very good news for people whose visa petitions were approved before the Child Status Protection Act’s effective date of 8/6/02, but who had not then filed for adjustment or consular processing:

USCIS Update      
May 6, 2008   

U.S. Citizenship and Immigration Services
Office of Communications

USCIS ISSUES REVISED GUIDANCE ON CHILD STATUS PROTECTION ACT (CSPA)

WASHINGTON — U.S. Citizenship and Immigration Services today issued guidance that will modify its earlier interpretation of the Child Status Protection Act (CSPA) which permits applicants for certain immigration benefits to retain classification as a child even if he or she has reached the age of 21. The guidance, effective today, changes how USCIS interprets the applicability of the CSPA to aliens who had aged out prior to the enactment of the CSPA on August 6, 2002.

Under prior policy guidance, USCIS considered an alien beneficiary of a visa petition that was approved before August 6, 2002 to be covered by the CSPA only if the beneficiary had filed an application for permanent residence (either adjustment of status or an immigrant visa) on or before August 6, 2002, and no final determination had been made on that application prior to August 6, 2002. This new policy extends CSPA coverage to aliens who had an approved visa petition prior to the enactment of CSPA but who did not have a pending application for permanent residence on the date of enactment of the CSPA.

Aliens who were ineligible under the prior policy and who subsequent to the enactment of the CSPA never filed an application for permanent residence may file an application for permanent residence to take advantage of this new interpretation. Aliens who filed an application for permanent residence after the enactment of the CSPA and who were denied solely because they had aged out may file motions to reopen or reconsider without a filing fee.

For detailed information on this issue, see the accompanying Fact Sheet with questions and answers and also review the guidance issued to USCIS field leadership at http://www.uscis.gov/files/nativedocuments/CSPA_30Apr08.pdf or call the National Customer Service Center at (800) 375-5283.

– USCIS –

Fact Sheet                                                         
May 6, 2008

U.S. Citizenship and Immigration Services
Office of Communications

USCIS ISSUES REVISED GUIDANCE ON THE APPLICABILITY OF THE CHILD STATUS PROTECTION ACT (CSPA)

The Child Status Protection Act (CSPA) amended the Immigration Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. The Act permits an applicant for certain benefits to retain classification as a “child,” even if he or she has reached the age of 21.

Since its enactment on Aug. 6, 2002, USCIS provided several field guidance memoranda regarding the adjudication of immigration benefits in accordance with the CSPA. Today, USCIS has revised its guidance that modifies a prior interpretation of certain provisions of the CSPA.

Questions & Answers

Q: What is the Child Status Protection Act (CSPA)?
A: CSPA changes who can be considered to be a child for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by USCIS.

The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. Children of lawful permanent residents also benefit if a Form I-130 is filed on behalf of their children (see below).

Q: Who benefits under the new CSPA guidance?
A: The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence (either an application for adjustment of status or an immigrant visa) on the date of enactment to benefit from the CSPA. Under prior guidance, the CSPA did not apply to such applicants. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

Q: Are there other considerations impacting eligibility requirements?
A: Yes.

    * The new guidance does not include aliens who, prior to Aug. 6, 2002 (date CSPA was enacted), had a final decision on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child.
    * If an alien filed an application for permanent residence after the enactment of the CSPA, and the application was denied, that denial must be ‘solely based’ on a finding that the applicant was not a child because the CSPA did not apply. An I-485 can be denied for various reasons; if your I-485 denial was based for a reason other than for CSPA, then this revised CSPA guidance does not apply to you. 

Finally, if you had an approved immigrant visa petition before August 6, 2002, and did not file an I-485 after the enactment of the CSPA, you could still benefit if (1) you are filing as an immediate relative or (2) your visa became available on or after Aug. 7, 2001, you did not apply for permanent residence within one year of petition approval and your visa becoming available.

Q: How do I know if I was denied solely based on CSPA?
A: The written denial decision you received from USCIS will state the basis for the denial.

Q: Will it matter whether the child reaches the age of 21 before or after the enactment date of the CSPA to benefit from this revised policy?
A: No, provided the applicant did not have a final decision prior to Aug. 6, 2002 on an application for permanent residence based on an immigrant visa petition upon which the applicant claimed to be a child.

Q: Please explain the differences of benefit for an immigrant petition filed by a U.S. citizen and a Lawful Permanent Resident.

A: Immigrant Petition as a child filed by a U.S. citizen:

·   If the child is under the age of 21 on the date of the filed immigrant petition, he/she will not ‘age out’. He or she will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child.

Immigrant Petition as a child filed by a Lawful Permanent Resident:

·         If the immigrant petition was approved and the priority date becomes current before the applicant’s ‘CSPA age’ reaches 21, the child will not ‘age out’, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. In order for CSPA coverage to continue, the child must apply for permanent residence within a one-year of the date the priority date became current.

Q: How do I calculate my ‘CSPA age’?
A: For preference category and derivative petitions, your ‘CSPA age’ is determined on the date that your visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. Your CSPA age is the result of subtracting the number of days that your immigrant visa petition was pending from your actual age on the date that your visa becomes available. If your ‘CSPA age’ is under 21 after that calculation, you will remain a child for purposes of the permanent residence application.

Q: If my child is a derivative of a petition filed on my behalf, can my child benefit under CSPA?
A: Yes, so long as the child also meets CSPA eligibility requirements previously discussed and applies for permanent residence within one year of the priority date being current.

Q: If I was previously denied because of ‘aging out’, can I file a motion to reopen or have my I-485 reconsidered? If so, is there a filing fee incurred?
A: Under the new policy, USCIS will accept, without a filing fee, a motion to reopen or reconsider a denied I-485 application if the following criteria are met:

·    A visa petition was approved prior to Aug. 6, 2002 and the I-485 was filed after Aug. 6, 2002;

·    The applicant would have been considered under the age of 21 under applicable CSPA rules;

·    The applicant applied for permanent residence within one year of visa availability; and

·    The applicant received a denial solely because he or she aged out.

Q: Is there a deadline for filing a motion to reconsider my I-485 if the original was denied solely for ‘aging out’? Where should I file the motion?
A: No deadline. Applicants should apply at their local USCIS field office.

Q: I did not have an application for permanent residence pending on Aug. 6, 2002 and did not subsequently apply for permanent residence? Am I still eligible for CSPA coverage?
A: Yes, provided the applicant meets the following criteria:

    * The applicant is applying for permanent residence as an immediate relative; or
    * The applicant’s visa became available on or after Aug. 7, 2001; and

The applicant did not apply for permanent residence within one year of the petition approval and visa availability, but would have qualified for CSPA coverage.

bh

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Comments

I read "USCIS Issues Revised Guidance on Child Status Protection Act (CSPA) " on uscis website and then called the customer service to check if I'm eligible for under CSPA as derivative of petition filed for my mother since I'm above 21.

According to them I'm not eligible, but the guidance given on the article says I'm eligile as long as my age according to CSPA formula is below 21.

Is there any way I can check whether I'm eligible under CSPA.

Posted by: Mihir | May 27, 2008 10:23:30 AM

sincerely inform you that the i am hiren panchal is alone in india. his whole family is settled in usa as a immigrant. so can you sujjest me? that the how can i go usa earlier.

Posted by: hiren a panchal | Jun 11, 2008 2:55:40 AM

It would be highly appreciate to clarify the attached update issues, and advise how can I reopen or or reconsider my daughter file.

For your easy reference my son immigration visa approved on 2002 and meantime in 2005 receiving letter for re confirmation . But in the last letter regret which we received on 2007 her name has been deleted from our file and meantime for the last approvel and requesting document from us her name was not in our file.

Re the below revised , he can be one of our case file member, since we already interviewed and are waiting for FBI check and getting our green care within 3-4 weeks , pls advise what I must do for my daughter before .
Thanks alot for your kind attention and assistance.
USCIS Update May 6, 2008

USCIS ISSUES REVISED GUIDANCE ON

CHILD STATUS PROTECTION ACT (CSPA)

WASHINGTON—U.S. Citizenship and Immigration Services today issued guidance that will modify its
earlier interpretation of the Child Status Protection Act (CSPA) which permits applicants for certain
immigration benefits to retain classification as a child even if he or she has reached the age of 21.

The guidance, effective today, changes how USCIS interprets the applicability of the CSPA to aliens who
had aged out prior to the enactment of the CSPA on August 6, 2002.

Under prior policy guidance, USCIS considered an alien beneficiary of a visa petition that was approved
before August 6, 2002 to be covered by the CSPA only if the beneficiary had filed an application for
permanent residence (either adjustment of status or an immigrant visa) on or before August 6, 2002, and
no final determination had been made on that application prior to August 6, 2002. This new policy
extends CSPA coverage to aliens who had an approved visa petition prior to the enactment of CSPA but
who did not have a pending application for permanent residence on the date of enactment of the CSPA.

Aliens who were ineligible under the prior policy and who subsequent to the enactment of the CSPA
never filed an application for permanent residence may file an application for permanent residence to take
advantage of this new interpretation. Aliens who filed an application for permanent residence after the
enactment of the CSPA and who were denied solely because they had aged out may file motions to
reopen or reconsider without a filing fee.

Posted by: shahlabaikzadeh | Jun 21, 2008 12:16:42 AM

Dear Hing

With tks information that you mentioned in lawprofessors web site which is very useful.

It would be highly appreciate if you clarify and advise how can I apply for my daughter. for your easy reference following please find my situation:

We went to usa embassy in ankara on 2nd june, 2008 for interview and waiting for FBI check and our visa will be ready within 2 months after above interview.

My daughter birth of date is 09/18/1983 which our petion filed on 03/23/2000 and approved on 05/30/2002.

On 22nd November, 2005 receiving letter which my daughter was one of members in our case and they informed since there are more applicant for visas than for some visa categories for example F3 or F4 this delay could be many years.

On October 22, 2007 they requested form DS-230 which my daughter name has been deleted from the list and mentioned dont send extra form or doc otherwise will failureor delay .

Finally received letter on 28th April 2008 which making appointment only for my young daughter, husband and mine .

Please advise what and where can check and take action and if I can do any thing before we take our green card visa and add my daughter to our file and if Ankara embassy can help us before issuing our green card .

Thanks alot for your kind attention and assistance .

B.regards

Alice

Posted by: alice sardarbegians | Jun 22, 2008 3:44:29 AM

here's the situation: my mother was petitioned 1986 by grandma. Only she, not us even though i was still a minor. she got her visa and left for the US 1996, i was 26 then. 1999 she petitioned me under f2b category and taking a long time. My question is: I should have been included in my granma's petition in '86? my mom declared us as her kids but due to ignorance of us about the law we didn't pursue it nor she asked if I could join her in the petition. My mom thought she's the only one allowed event though i'm her minor kid then. Any thoughts on this please??? email me

archiesantosdiaz@yahoo.com

Posted by: archie santos-diaz | Jul 20, 2008 2:58:39 AM

hello i'd like to know if the revised guidance of the CSPA will apply to me or not
my aunt filed a petition on behalf of my mom - priority date Feb 1995
i was 18 back then, now i'm 32 single
the visa became available in May 2006
thanks

Posted by: cesar | Dec 10, 2008 9:26:47 PM

hello
my mom visa petition was file in 1995 priority date Feb 1995
my age was 18 back then now i am 32
a visa number became available in May 2006
will the CSPA apply to me ?
thanks
c

Posted by: cesar | Dec 10, 2008 9:30:18 PM

hello
my aunty filed immigrat visa petition on brother and sister of us citizen catagory [F 4] in 1998 priority date aug 1998
my age was at that time 13 then now i am 24
a visa number become available in june 2009
will the CSPA apply to me?
help me n give me a guideline for that.
thanks

Posted by: digant pathak | Jun 1, 2009 5:47:17 AM

my sister also need guideline about it she was 11 at that time would she get some benifit from the child status protection act?plz kindly pay attantion at my question.thanks.

Posted by: digant pathak | Jun 1, 2009 5:51:06 AM

To sir:
Object: request of help about I-130 immigration

I am a young algerien my age is 21 years I did a back of immigration on 13 April 2006 has the form I-130 ( permannent resident filling for au spous or child under 21 years ), the number of my back the veiled: wac0614951104. On 21julay 2009 my case was approuved.
INFORMATION:
-Date birth of petionner and his name : Inchekel ahmed.......4julay 1935
- Date of birh of beneficiary an his name : Inchekel khelifa ......11june 1988
-cas number: WAC0614951104

1- I want know if the CSPA give me a age F2A minor else like a F2B major? thanq you.

Posted by: khelifa | Aug 12, 2009 4:42:26 AM

My aunty filed immigrant visa petition on brother and sister of us citizen category(F4) in 1998, Priority date September 1998 and approval date is January 1999. My age was at that time 12 then now i am 24 a visa number become available in March 2010. Will the CSPA apply to me?

Help me and give me a guideline for that

Thanks

Posted by: varsha mody | Jan 5, 2010 3:23:42 AM

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