CSPA : Who can Really Reap its Benefits?
Posted Oct 25, 2002

Regular MurthyBulletin and MurthyDotCom readers may recall that the Child Status Protection Act (CSPA) became law on August 6, 2002. We addressed the enactment of this law in our August 09, 2002 article, President Signs Age-Out Legislation. The details regarding this particular law were covered in Age-Out Protection Bill Likely to Become Law from August 02, 2002. The CSPA holds much promise for those beneficiaries who reach the age of 21 before they are able to obtain the green card.

The Law Office of Sheela Murthy has received a number of inquiries from persons who previously "aged out," wondering if the law will benefit them. Much of the debate on the meaning of the Child Status Protection Act has focused on the rights of these children / derivative beneficiaries who are now wondering whether they can obtain a green card a few months, or even years, after having aged out under prior law.

Common Categories of Derivative Beneficiaries

A person is a "derivative beneficiary" when s/he is immigrating based upon a petition filed on behalf of his/her parent. For example, the parent's employer could have filed an employment-based petition (I-140). There are also several types of family-based petition (I-130) categories that allow for inclusion of spouses and children. Among these, the third preference (married son or daughter of U.S. citizen) includes that son or daughter's spouse and children; while the fourth preference (brother or sister of U.S. citizen), includes that brother or sister's spouse and children.

Understanding How One Can Enjoy CSPA Benefits

The relevant legal provision for derivatives is contained in Section 3 of the CSPA. This section provides a formula for calculating the time at which the individual's age should be gauged. Using this formula, determination is made according to the individual's age on the date an immigrant visa number becomes available for him/her (or the date an immigrant visa number became available for the principal applicant), reduced by the number of days the petition was pending, but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability. This wording is complicated, and both INS and the U.S. Department of State (DOS) are in the process of interpreting and clarifying the requirements.

Further limitations are contained in Section 8. This section provides that the CSPA benefits apply to family or employment beneficiaries (and derivatives) of cases approved before August 6, 2002, but only when there has been no final determination on the individual's Application for Adjustment of Status or Immigrant Visa Petition.

INS Interpretation : Adjustment of Status Applicants

To date, no regulations have been issued to interpret the Child Status Protection Act. Johnny N. Williams, INS Executive Associate Commissioner for the Office of Field Operations, released a Memorandum to INS’ Regional Directors, the Deputy Executive Associate Commissioner for Immigration Services, and to the Director of the Office of International Affairs on September 20, 2002, providing INS’ initial interpretation of these sections.

According to this Memo, INS is following the logical application of the formula outlined in Section 3 to determine whether a child is under 21 years of age and, thus, able to file for adjustment of status. INS will look to the time when the priority date of the Form I-130 (or, presumably, the I-140 for employment-based cases, though INS is silent on this) becomes current. INS maintains that this is the first day of the month during which the priority date became current. Once INS has determined this date, they will subtract from it the number of days that the I-130 was pending at INS. However, CSPA benefits are available only if the derivative beneficiary files for adjustment of status within one year of the time that the priority date became available. Accordingly, it appears that INS is defining the “sought to acquire status” requirement as the filing of the adjustment of status (I-485) application.

Williams is not as clear in explaining the implications of Section 8. While he acknowledges that any case currently pending with INS is subject to the new law, his only other comments are that any petition already approved by INS, but where no final action on the beneficiary’s application for adjustment of status or for an immigrant visa has been taken, is subject to the provisions of the new law. He has not clarified this language, as yet. Perhaps INS is still trying to make its own determination regarding implications of Congress’ language. The Law Office of Sheela Murthy remains committed to encouraging INS to take the most immigrant-friendly interpretation of this language possible.

DOS Interpretation : Consular Processing Cases

DOS has subsequently issued a cable with its interpretation of these sections of the law for consular processing cases. DOS recognizes that Section 3 of the CSPA applies to derivative applicants in family-based and employment-based preference cases, as well those in DV (visa lottery) cases. It would also apply to F2A principal applicants (as being the only type of principal beneficiaries who would be under 21 and qualify as "children" under immigration law).

DOS defines the visa availability date as the time at which the priority date is current and the I-130/I-140 is approved. They essentially apply the formula in the same way as INS. However, DOS has determined the “seeks to acquire the status of an LPR” clause to mean the date of the visa application. For consular processing cases applicants complete a two-part application. DOS’ October 2, 2002 interpretation in an AILA-DOS liaison meeting disfavored applicants by indicating that the triggering event is the filing of the second part, i.e., the later part of the application (DS-230 Part II). However, this position is not final and DOS has indicated to its consular posts that they should request an Advisory Opinion on cases that fall within Section 3 of the CSPA. Therefore, if a consular post denies a case without first seeking an Advisory Opinion, the applicant should ask for an Advisory Opinion in order to preserve his/her chances of obtaining a green card.

DOS’ interpretation of Section 8 also narrowly construes the law. DOS agrees with INS that the CSPA applies to cases in which the petition or visa application was filed on or after August 6, 2002, as well as to previously-filed cases that remained pending on August 6, 2002. However, DOS interprets the phrase ”only if a final determination has not been made on the beneficiary’s application for a visa or adjustment of status prior to (August 6, 2002)" in a way that limits the number of persons who will benefit. The DOS' interpretation eliminates eligibility for those applicants who had cases denied due to an age-out under the old law or who never applied for the visa because they aged out under the old law.

This DOS interpretation is disappointing for the immigration community, as it drastically reduces the number of potential beneficiaries of the CSPA. The only ray of hope is that DOS has acknowledged that this interpretation is not final. This disclaimer statement presumably provides an opportunity for attorneys, including those of us at The Law Office of Sheela Murthy, to encourage the DOS to be more expansive in its interpretation of Section 8 for the benefit of children who have long awaited their immigration processes and the reuniting of their families.

While it is clear that the CSPA is a tremendous and welcome asset to those who are currently in the immigrant petition, adjustment of status, and consular processing stages, neither INS nor DOS has openly embraced the idea of conferring benefits under the CSPA to individuals who have suffered under the age-out laws of the past. However, neither agency has shut this door completely. Until regulations are in place, it is worthwhile to pursue any and all potential benefits Congress may have intended to provide through the CSPA. Continue to consult the MurthyBulletin and MurthyDotCom for updates on this exciting and controversial law.