USCIS Revises Guidance on CSPA : More Protection for Children Aging Out  Posted May 23, 2008
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The U.S. Citizenship and Immigration Services (USCIS) recently issued Revised Guidance for the Child Status Protection Act (CSPA) (PDF 106KB). This significantly expands the scope and class of individuals potentially eligible to benefit under the CSPA. The USCIS posted a series of Questions and Answers on May 6, 2008, clarifying the new guidance and providing background information on the CSPA. Background information on the CSPA is available on MurthyDotCom, including our November 4, 2005 article, The Impact of Retrogression on the CSPA. The new CSPA guidance replaced the earlier USCIS policy, and is relevant to children who "aged out" (reached over 21 years of age) before the CSPA was enacted, as well as those with cases denied based upon prior policies.
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CSPA Applies Retroactively
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The new CSPA interpretation grants benefits to those individuals who "aged out prior to the enactment of the CSPA." More specifically, it permits those individuals "who did not have an application for permanent residence pending on August 6, 2002 and did not apply subsequently for permanent residence" to file their applications for adjustment of status at this time. Those eligible include individuals who had an approved immigrant petition prior to the enactment of the CSPA, are filing as immediate relatives, and whose visa numbers became available on or after August 7, 2001.
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Denials Based Solely on "Aging Out" may Re-File or File MTR
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In addition, those who filed their applications for adjustment of status previously, but were subsequently denied solely based on the finding that the applicant was not a child for the purposes of the CSPA, are permitted to re-file at this time. This benefit does not apply to those applicants who received a final decision on their applications prior to the enactment of the CSPA or those whose applications were not denied solely based on the CSPA ineligibility ground. In all eligible cases, applicants should file a motion to reconsider an earlier decision with their local USCIS field office. There is no filing fee and no deadline for filing the motion.
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Conclusion
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The new interpretation of the CSPA may benefit many applicants who had their applications for adjustment of status denied in the past or who did not apply for adjustment of status because they aged out before the enactment of the CSPA. One who may be eligible to apply at this time should consult with an immigration attorney since the CSPA involves some highly complex concepts. A qualified, experienced professional may need to discern whether to apply these in a specific situation in order to determine eligibility and possible benefits under the CSPA.