DOS Revises CSPA Policy
Posted Feb 28, 2003

We are pleased to share with MurthyDotCom and MurthyBulletin readers that the U.S. Department of State (DOS) finally has issued clearer guidelines and policies on the Child Status Protection Act (CSPA). We originally reported on CSPA in our December 6, 2002 article, Child Status Protection Act : Detailed Analysis, available on MurthyDotCom.

The DOS issued a clarifying policy memo on January 3, 2003, only recently made available to the public. The analysis is essentially a two-step process. First, it must be determined whether the CSPA applies to a particular case. Second, if CSPA applies, the case must be reviewed to determine whether the individual is regarded as being under 21 years of age, for purposes of the law. A summary of the new policies follows.

Cases Filed On or After August 6, 2002

The Cable released by the DOS indicates that a consular officer analyzing a potential CSPA case should start with Section 8 of the CSPA. Section 8 addresses the Effective Date of the law. In this Cable, the DOS takes the approach that the CSPA applies to all cases in which an I-130 or I-140 petition was approved on or after August 6, 2002.

Cases Filed Before August 6, 2002

For cases in which an I-130 or I-140 was approved before August 6, 2002, the CSPA will only apply in two situations. The first is if the foreign national child aged out (reached age 21) on or after August 6, 2002. The second situation in which CSPA applies is if the foreign national child aged out before August 6, 2002, but had applied for an immigrant visa before aging out. In this case, the CSPA will apply only if the applicant was refused a visa under §221(g) of the Immigration and Nationality Act. A §221(g) denial indicates that the foreign national may not obtain the visa until additional information is provided to the consulate.

The Cable, additionally, provides that, if the foreign national child applied for an immigrant visa prior to August 6, 2002, and the visa was denied on other grounds that have subsequently been overcome or waived, the case should be sent for an advisory opinion. Further, any Patriot Act provisions that may apply to the foreign national child’s case are preserved. The Cable is also careful to point out that, if the I-130 or I-140 was approved on or after August 6, 2002, the CSPA still may apply, even if the child aged out before August 6, 2002 or did not apply for an immigrant visa before that date.

Age Determination

Once a consular officer has determined that the CSPA may apply in a case, the officer must then determine the child’s CSPA age. Age determination under Section 2 of the CSPA remains fairly straightforward. This is for direct beneficiaries of I-130 petitions. For Immediate Relatives (IR), and Family Second, Third, and Fourth preference cases (F2, F3, and F4, respectively), the child’s CSPA age is the age on the date the I-130 was filed. For F2 cases (spouses, minor children, and adult, single children of permanent residents), in which the Petitioner naturalizes and the case can convert to IR (spouse of U.S. parent or minor child of U.S. citizen) or F1 (adult, single child of U.S. citizen), the child’s age is the age on the date that the Petitioner naturalized. F3 (adult, married children of U.S. citizens) cases in which the beneficiary divorces and could convert to either IR or F1, the child’s age is the age on the date of the divorce.

As our regular readers may know, the difficult ages to determine are those under Section 3 of the CSPA. This section covers family and employment-based derivative beneficiaries. This requires application of a formula to determine the child's CSPA age. The formula is the child’s age on the date that a visa first became available minus the time that the I-130 or I-140 petition was pending with INS, but only if the child "sought to acquire" within one year of the visa availability.

Favorable Change re Sought to Acquire Status

In an exciting development, the DOS recognized that its earlier interpretation of “sought to acquire status,” as the filing of the DS-230 Part II, was unduly restrictive. Therefore, they have amended their interpretation and have redefined “sought to acquire status” to mean the filing of the DS-230 Part I. This interpretation leaves it in the child’s hands to get the CSPA benefit rather than wait for the DOS to take action on his or her case and, therefore, provides an opportunity for more children to benefit from this provision. The Law Office of Sheela Murthy, P.C. applauds the DOS’ revision of its policy on this important section of the CSPA.

The cable further provides that it must be the child’s own DS-230 Part I that is filed within the one-year period. The Primary Applicant’s DS-230 Part I, alone, will not suffice. The child must be able to provide proof that the application was filed within the year. Further, the DOS recognizes that there may be some instances when the DS-230 Part I is submitted to the DOS before the priority date is current. In these cases, the DOS deems the DS-230 Part I to have been filed within a year of the visa availability date. If the Primary Applicant adjusted status in the United States, the DOS will look to the date that the I-824 is filed to determine whether the child sought to acquire status within one year or took other steps required for follow-to-join cases at that particular consulate. Again, the DOS has taken an enlightened approach to interpreting this provision of the law, as the I-824, in many cases, may take over a year to process.

Non-Applicability to Vs and K-4s

Unfortunately, the CSPA makes no mention of age-out benefits for nonimmigrants. DOS has noted this and has determined that, even if a potential V or K-4 applicant could receive CSPA benefits for her/his immigrant application, s/he will not be eligible for the V or K-4 visa if s/he has aged out.

Conclusion

Though the DOS has not embraced everyone who, potentially, could have benefited from the CSPA, they have significantly expanded certain "children" who may be able to avoid aging out through their new interpretations. Now that the DOS has issued a clearer policy, this is the framework for consular processing of CSPA cases until the INS issues final regulations. We will continue to update MurthyDotCom and MurthyBulletin readers on CSPA issues as they arise.