USCIS Issues Policy Memorandum about CSPA

Green CardThe Child Status Protection Act (CSPA) is an act that was passed by Congress which holds critical importance for the beneficiaries of many family-based immigration cases.  The CSPA protects foreign national children from “aging-out” of the immigration process (and thereby losing their eligibility for a green card) if their parents’ immigration applications are subject to lengthy delay.

In general, if a foreign national is the beneficiary of an approved employment-based or family-based immigration petition, the foreign national’s spouse and children may accompany the foreign national to the U.S. and receive green cards of their own as derivative beneficiaries of the original immigration petition.  However, “children” has a very specific meaning in the context of immigration law.  An individual will only be considered a “child” if he/she is both unmarried and under the age of 21 years old.

Because there are lengthy wait times (often several years) between the date of filing an immigration petition, the date the petition is approved, and the date a green card becomes available to the beneficiary, a child may turn 21 years old while waiting for these processes to conclude.  The CSPA allows such an individual to “freeze” his/her age for the purposes of immigration benefits, thereby allowing the individual to retain eligibility for a green card even after he/she turns 21.

To qualify for CSPA protection, the individual must meet two requirements.  First, the main applicant’s immigration petition must be filed before the individual turns 21 years old.  Second, the individual must “seek to acquire” the green card within one year of the green card becoming available (i.e. within one year of the priority date becoming current).

It is pretty easy to meet the first requirement as the individual knows when he/she will turn 21 and can communicate that date to the immigration attorney in order to ensure the attorney files the petition before that date.  The trickier aspect of the CSPA is the “seek to acquire” requirement.

Under current USCIS policy, there are three ways by which an individual can meet this second requirement: by filing a Form I-485 Application to Adjust Status, by filing a Form DS-260 Application for an Immigrant Visa, or by filing a Form I-824 Application for Action on an Approved Application.

Since filing any of these three applications could take a long time, some applicants have lost their CSPA eligibility – and therefore, their eligibly for a green card – because they were unable to meet this requirement.

Previously, the failure to meet the one year seek-to-acquire deadline was inexcusable.  However, recently the Board of Immigration Appeals (BIA) in the case Matter of O. Vasquez determined that USCIS has the discretion to excuse, i.e. forgive, the missed one year deadline if extraordinary circumstances were present in the case.

In this case, the BIA states that in order for the applicant to establish extraordinary circumstances existed, the applicant must show:

  1. The circumstances were not created by the applicant (either through the applicant’s action or inaction)
  2. The circumstances were directly related to the applicant’s failure to meet the one year deadline
  3. The delay was reasonable in light of the extraordinary circumstances

This BIA decision and the resulting implications represent landmark good news for CSPA applicants who may be faced with situations beyond their control.

It is important to bear in mind that, even in light of this BIA case, all immigration petitions are very time-sensitive and require prompt and efficient action.  Contact our office today to speak to a skilled immigration attorney about your case!