Columbus Immigration Attorney on the Retroactive Application of the Child Status Protection Act

bigstock-Immigration-Rally-In-Washingto-7293583Many of our Family Immigration clients in Columbus, Ohio and in Michigan and elsewhere share their frustration that notwithstanding near a decade passage of the Child Status Protection ACT (CSPA), USCIS continues to struggle with its interpretation. I explained in my prior blog, The Child Status Protection Act (CSPA), enacted on August 6, 2002, contains remedies for foreign nationals claiming a “child” status who are in jeopardy of losing their immigration benefits due to aging out. Though the Child Status Protection Act (CSPA), was enacted in 2002, the United States Citizenship and Immigration Services (USCIS) were still changing its interpretation of the CSPA’s provisions until 2008. In particular, foreign nationals who had an approved immigrant visa petition prior to the CSPA’s inception, but had not filed a green card application before August 6, 2002 were initially not eligible for the CSPA’s benefits.

In guidance issued in February 2003 and August 2004, the USCIS reiterated their initial position: that the provisions of the CSPA took effect on August 6, 2002 and were not retroactive. Thus, benefits would only be available to foreign nationals who aged out on or after August 6, 2002. The only exceptions for foreign nationals who aged out prior to August 6, 2002 were for those who had a visa petition either pending on August 6, 2002 or had an approved petition with a green card application pending on August 6, 2002. Interestingly, pending for the purposes of visa petitions includes appeals or motions to reopen filed with the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO) on or before August 6, 2002.

The USCIS’ policy shift was not voluntary, rather mandatory in light of the BIA’s decision in In Re Rodolfo Avila-Perez in February 2007, holding that it is not mandatory for a foreign national to have an application for adjustment of status or immigrant visa pending on August 6, 2002 to be eligible for CSPA benefits. Accordingly, the USCIS revised its previous position regarding the retroactivity of the CSPA provisions. Currently, qualifying foreign nationals who aged out prior to the CSPA’s implementation can file a new green card application to take advantage of the CSPA. Additionally, foreign nationals whose green card applications were denied due to age can file motions to reopen or reconsider. It took the USCIS a long time to settle on the appropriate interpretation of the CSPA, but fortunately the correct conclusion was reached: that the benefits of the CSPA should have retroactive application to certain foreign nationals.

Columbus Family Immigration Attorney on the Child Status Protection Act

bigstock-Passports-31148From Columbus, Ohio and Troy Michigan and beyond, The Child Status Protection Act (CSPA) gives children of immigrants badly needed protection form government slow immigration processing. The Child Status Protection Act (CSPA) was first enacted on August 6, 2002 for the purpose of allowing certain children of lawful permanent residents or naturalized U.S. citizens to maintain their “child” status through 21 years of age. Increasingly, processing delays at the United States Citizenship and Immigration Services (USCIS) were causing children to lose their eligibility for certain visa classifications due to “aging out” or turning 21 years old.

In general, the Child Status Protection Act (CSPA) provides that the age of a foreign national claiming a child classification will be frozen upon the occurrence of various events, depending upon the type of petition pending. For example, if an immediate relative petition was originally filed, the CSPA considers the foreign national’s age to be fixed as of the date Form I-130 Petition for Alien Relative was filed. If Form I-130 Petition for Alien Relative was filed while the foreign national was 20 years old, the foreign national’s age for visa classification purposes would be frozen at 20 years old until a visa number became available.

The CSPA contains special provisions for children whose lawful permanent resident parents naturalize, children self-petitioning under The Violence Against Woman Act (VAWA), and married children whose marriage is subsequently terminated. Additionally, the most recent guidance from the USCIS allows retroactive application of CSPA benefits to foreign nationals who had an approved immigrant visa petition prior to the establishment of the CSPA, but had not yet applied for a green card by the date the CSPA was enacted. This development in CSPA interpretation allows many foreign nationals who never filed a green card application, or had their application denied due to age, to refile.

The CSPA provisions are anything but easy to comprehend. Originally, the USCIS even had some difficulty in determining how the provisions of the CSPA should be interpreted and, for many years, was continually issuing revised guidance memoranda. There has been well documented cases of improper denials by USCIS since 2002. Notwithstanding the confusion, it is in the best interests of any foreign national in danger of aging out to fully understand and avail themselves of the benefits of the CSPA. I will provide more details on this in follow up blogs.