USCIS Issues Policy Memorandum on CSPA26 Aug 2015
The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on April 15, 2015, on a technical matter under the Child Status Protection Act (CSPA). U.S. immigration law generally limits dependent or derivative status to children who are under twenty-one years of age. In the permanent resident (commonly, green card) context, if certain conditions are met, the CSPA allows derivative benefits beyond the child’s 21st birthday. This memo addresses one of the key steps needed to freeze a child’s age, and the limited exception available.
At one time, a child who turned twenty-one years of age was no longer eligible to receive a green card as part of a parent’s case. This held true even if the child had aged out solely because of excessive government processing delays. The CSPA was intended to help alleviate this unfair outcome. The CSPA contains a formula for determining the child’s CSPA age, as detailed in the MurthyDotCom NewsBrief, Child Status Protection Act Basics (Part 1 of 2) (28.Jun.2013).
“Sought to Acquire” Within One-Year Requirement
An important restriction to eligibility under the CSPA is the requirement that an applicant seeks to acquire permanent resident status within one year of a green card becoming available. That is, even if under the CSPA the person’s age is considered to be under 21, this benefit can be lost. In order to preserve this eligibility, the applicant must move the green card case forward within a year of the time when that benefit is considered to have become available.
The action that must be taken within the one-year timeframe generally includes filing one of the following: an adjustment of status application (I-485), a following-to-join application (I-824), or an immigrant visa and alien registration application (DS-260). The appropriate actions depend upon the location of the individual and other factors beyond the scope of this article. Any of these actions constitutes seeking to acquire lawful permanent resident (LPR) status and will suffice to freeze the CSPA applicant’s age. Failure to take one of these actions within one year of a green card being available, on the other hand, may result in loss of eligibility under CSPA for the child who has aged out.
Extraordinary Circumstances Exception
There is a limited exception to the sought to acquire within one year requirement. This exception is available if an applicant can demonstrate that “extraordinary circumstances” prevented the person from applying before the one-year deadline.
This is based upon a precedent Board of Immigration Appeals (BIA) decision from 2012, Matter of O. Vasquez. The memorandum provides USCIS adjudicators with official guidance on how to apply the BIA decision, clarifying what constitutes “extraordinary circumstance” for late CSPA applications. This guidance is consistent with an earlier interim policy memorandum on this topic.
Factors that Constitute Extraordinary Circumstances
In the memorandum, the USCIS explains that extraordinary circumstances may exist if:
a) the circumstances were beyond the control of the applicant,
b) the circumstances were directly related to the failure to file within one year, and
c) the delay was reasonable under the circumstances.
Examples of Extraordinary Circumstances
The memo provides some specific examples of situations that may warrant a finding of extraordinary circumstances, such as:
- Serious illness or mental or physical disability during the one-year period
- Legal disability, such as mental impairment, during the one-year period
- Ineffective assistance of counsel (i.e. bad legal advice, or defective legal services), if certain specific evidentiary requirements are met
- Filing error – in some circumstances, an application may be timely filed, but rejected for technical reasons (The USCIS states that this may constitute extraordinary circumstances in some situations, if the error is corrected and the application is refiled within a reasonable period.)
List of Extraordinary Circumstances Not Exhaustive
The memorandum notes that this list is not all-inclusive, and that other situations may constitute extraordinary circumstances. Officers are required to consider the totality of the circumstances and the relationship between the circumstances and the failure to file within one year. In general, the memo states, circumstances such as financial difficulty, minor medical conditions, or circumstances within the applicant’s control, will not constitute extraordinary circumstances. The fact that an applicant was a child does not, in and of itself, constitute extraordinary circumstances.
Motions to Reopen after Vasquez Decision of June 8, 2012
The USCIS makes clear that this new guidance regarding extraordinary circumstances and late-filed CSPA applications is not fully retroactive; cases denied before June 8, 2012, which was the date Vasquez was decided, are considered proper based on the law at the time and generally will not be reconsidered. However, for denials issued after Vasquez, in which the denial was solely based on the applicant failing to seek to acquire LPR status within one year of a green card being available, a motion to reopen may be filed, per this memo. These motions will be considered on a case-by-case basis on the strength of the evidence provided.
This USCIS memorandum provides an important safety valve for applicants whose green card applications have been denied based on the CSPA one-year deadline. Anyone who received such a denial, particularly after June 8, 2012, should immediately seek competent legal advice regarding the possibility of reopening the case based on the current USCIS policy. Attorneys at the Murthy Law Firm are available to consult on CSPA issues.
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