Child Status Protection Act - Q&A

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Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:

Child Status Protection Act: Explaining the new law

Jennifer Wipf: I'm calling Mr. Shusterman and turning on moderation.

Please remember that these questions and answers are of a general nature. Mr. Shusterman's replies cannot be construed as legal advice. Thanks and welcome.

Question #1: My DOB is 9th August 1981. Green Card petition had been filed for my Dad by his brother under preference category F4 on 26th July 1990. Our Priority date is current now. But I turned 21 on 9th Aug 2002. We have just sent out the choice of agent form now and we expecting the dsl forms. So will I be able to accompany my parents under the new Act ? Do we have to submit any papers to our consulate to inform them about my aging out problem?

Carl Shusterman: This question illustrates some of the complexities involved in determining eligibility under the Child Status Protection Act, which was signed by President Bush on August 6th, 2002. Under prior law, you would have aged out, that is when you turned 21 on August 9, 2002, you would have lost the ability to immigrate together with your parents.

Since the enactment of the law, your eligibility to immigrate with your parents must be determined according to the following formula:

First of all, it is necessary to determine your age on the date that a visa number became available to you, the day that your priority date became current that is. Second, the amount of time that your uncle's visa petition remained pending, must be subtracted from your age when your visa number became current. Finally, assuming this subtraction results in 'immigration age' of under 21, you must apply for an immigrant visa if you are abroad, or for adjustment of status if you are in the United States within one year.

Question # 2: My question is if CSPA will help me? My father is LPR he applied for me when I was 16 years old (2A) I then age out when my visa became available. Now I,m 26 years old I'm from Mexico and hopefully the new law will help me. Thank You.

Carl Shusterman: The 2A category is backed up to January 8, 1995 for persons born in Mexico while the 2B category for unmarried children of permanent residents who are over 21 years of age is currently unavailable.

From your example, it is clear that you turned 21 many years before the passage of the Child Status Protection Act. Generally, the Act is not retroactive. Although, I don't know the complete facts in your case, my best guess is that you will not benefit from the new law.

You should explore other ways of immigrating to the United States, for instance, the employment based categories. Good luck.

Question #3: My sister received her permanent resident visa in Jan 2001 ( I had applied for her and her spouse and children in 1988). Her children could not accompany her because they aged out. One turned 21 in 1999 April, second in 1996 Sept. Both are not married yet. She filed petitions for them as relative form I130 in April 2001, within one year from her obtaining her perm. resident visa. We need to know if these children now qualify to receive perm. resi. visa under the CSPA. Please let us know. What procedure they will have to follow? Thanks for your advice.

Carl Shusterman: Again, the Act is not generally retroactive. If her children had aged out in January of 2000, when your sister became a permanent resident, it is not likely that they will be able to obtain benefits under the Act. However, if your visa petition was pending many years with the INS before it was approved, there is always a chance that your nieces and nephews might have immigration ages of under 21 under the formula.

That is not the end of the analysis. The final section of the law provides that the law is effective for derivative beneficiaries only if:

1) A visa petition was approved before the passage of the law, but only if a final determination has not been made on the beneficiary's application for an immigrant visa or for adjustment of status.

2) A visa petition was pending on or after the date the law was enacted;

3) An application for a green card based on the visa petition was pending on or after the date that the law was enacted.

Everyone ~ A lot of the questions that have been asked here tonight relate to a very similar situation. A visa petition was filed by a family member, usually a brother or sister, many years ago. By the time the priority date became current, one or more of the beneficiary's children had aged out. Unfortunately, the Child Status Protection Act was not designed to address such situations. Rather, the new law is primarily addressed to prevent aging out of children where the INS takes a long time to approve a visa petition.

As stated above, it is only the time in which a visa petition was pending that may be subtracted from the child's age in order to establish his or her 'immigration age'.

Jennifer Wipf: The formula was given above by Carl.

Carl Shusterman: I am totally sympathetic to people who apply for their brothers and sisters, wait over 10 years for their visa number to become current, only to watch their nieces and nephews age out along the way.

My own wife immigrated from the Philippines. When she became a citizen in the United States in the late 1970s, she petitioned for some of her brothers and sisters. By the time the priority dates became current for her siblings, most of their children had aged out and they decided not to immigrate to the United States because of this.

However this is not the situation addressed by the Child Status Protection Act. In order to make this complex law easier to understand, I compiled a ten question FAQ even before the law was signed by the president, and I posted it on my Website. Please see

http://shusterman.com/hr1209-faq.html

Those of you who are more ambitious may want to read the full text of the law, which we link to from:

http://shusterman.com/toc-gc.html#2C

Also, read the State Department cable on the new law, which I posted on my site earlier today at:

http://shusterman.com/cspa-dos.html

Finally, to see how the new law applies to refugees and asylees, see the INS memorandum at:

http://shusterman.com/pdf/cspa589.pdf

With that in mind, let's see if we have some other questions.

Jennifer Wipf: Does anyone have a question about the Child Status Protection Act, that does not involve a question about retroactivity?

Question #4: I am presently 32 years old. I am in US for the last almost 7 years on an H-1 visa. My sister is a US citizen and applied for green cards for my parents this first week of July. I recently went to India and got married on 7th August 2002 and the law came on 6th August 2002 (I had no clue about the law at that time). Is there anyway that me and my wife can take advantage of this Child Protection law by stating that at the time of application of green cards for my parents I was unmarried and apply under the family based category?

Carl Shusterman: The reason that you cannot benefit from the new law is that the CSPA deals exclusively with age, not marital status. You did not say whether or not your sister applied for you. As a U.S. citizen she is certainly eligible to do so. And when one is applied for, as a brother or sister, his or her marital status is not relevant.

However, since the 4th preference category for India is in 1990 and since all the employment based categories are current, I would advise you to explore the possibility of immigrating through your job.

Jennifer Wipf: Since we have no questions left that do not involve retroactivity, we are going to go over what the law actually does do.

Carl Shusterman: Examples of the law:

Example 1: A U.S. citizen applies for their son or daughter who is under 21 years of age. Before the passage of the new law, unless the son or daughter became a permanent resident before turning 21, his or her petition automatically converted to the family first preference category (which is a 5 1/2 year wait).

Under the Child Status protection Act, the child's age is fixed as of the date that the parent submits the I-130 visa petition no matter how old the child is when he or she eventually becomes a permanent resident.

Example 2: A parent who is a permanent resident petitions for their child under the 2A category. Before the child becomes a permanent resident, the parent naturalizes. The new law fixes the child's age as of the date of the parent's naturalization, no matter how old the child is when he becomes a permanent resident.

Example 3: A child is petitioned by his U.S. citizen parents under the Family 3rd Preference category as a married son. Before the child becomes a permanent resident, he obtains a divorce. Under the new law, the child's age is fixed as of the date of the divorce.

Example 4: A permanent resident parent applies under the 2B category for his adult unmarried daughter who was born in the Philippines. Before the daughter becomes a permanent resident, the parent becomes a naturalized citizen of the US. For Filipinos, the parent's naturalization has the unwanted consequence of delaying the daughter's permanent residence for several additional years. Under the new law, the daughter can choose to remain in the 2B category even though the petitioning parent has naturalized.

Also, the new law applies to refugees, asylees and winners of the diversity visa lottery.

We have discovered that quite a few of our clients benefit from the new law, including one family who came to us after their children had been ordered deported, because they had been automatically converted to a new preference category when they turned 21 years of age. We have submitted motions to remand their case to the Board of Immigration Appeals, and will later ask an immigration judge to adjust their status to permanent residents.

In closing, I want to say that the operation of this new law is very complex and it is obvious that many people are confused as to the benefits of the new law. A good place to start is with the FAQ on my Website. Make sure that
whichever lawyer that you consult concerning the Child Status Protection Act, that he or she is a specialist in immigration law.

Jennifer Wipf: Our time has run out. Thank you all for attending, and I'm sorry it was bad news for most of you. :(

Carl Shusterman: Good night everyone, and good luck!