New hope for aged-out children who missed CSPA’s one year filing deadline

On June 27, 2014, the USCIS published a Policy Memorandum (PM) which could provide new hope for children who may have been eligible for benefits under the Child Status Protection Act (CSPA), but missed the one-year “sought to acquire” deadline for pursuing a visa. If the child missed that filing deadline due to “extraordinary circumstances,” then the child could still be eligible for benefits under the CSPA. Extraordinary circumstances could include hiring an attorney to process the child, but the attorney missed the filing deadline, due to wrong advice or misunderstanding of the CSPA.

By way of background, the CSPA has a mathematical formula for calculating a child’s age, by subtracting from the child’s age, the length of time it took USCIS to process the underlying petition. If, after subtracting the petition processing time from the child’s age when the priority date is current,  the child’s age  is still under 21, then the child has satisfied the “first step” in establishing CSPA eligibility.

The “second step” is that the child must have “sought to acquire” a visa within one year of when the priority date became current or visa became available. This is where most people mess up on CSPA eligibility. Even though the child’s age is calculated to be under 21, the family does not take the necessary steps to satisfy the “sought to acquire” requirement. Traditionally, there were three ways to meet the “sought to acquire” requirement:

• Filing Form I-485, Application to Register Permanent Residence or Adjust Status on behalf of the child, if the child is in the US;

• Submitting Form DS-230, Application for Immigrant Visa and Alien Registration for the child, if the child is being processed overseas at the Embassy; or

• Having Form I-824, Application for Action on an Approved Application or Petition, filed on behalf of the child. This is typically done if the parent is in the US filing for adjustment, and later hopes to bring the child to the US as a “following to join” derivative.

Many families are unaware of this one year filing deadline, especially in situations where a parent is filing for adjustment of status when the priority date becomes current, but did not file the Form I-824 (for a derivative relative) on time. In many cases, they mistakenly believe that they can file the Form I-824 only after they adjust status. This is wrong. The I-824 can be filed at the same time that the parent files for adjustment in the US, which should be within one year of when the visa became available or priority date became current.

The new Policy Memorandum states that if the one-year filing deadline is missed, there is still hope, if the reason the deadline was missed was due to “extraordinary circumstances,” beyond the control of the alien, which could include illness, mental or physical disability, where the filing was erroneously rejected by USCIS, or where they hired an attorney to process the child, but the attorney missed the filing deadline, or gave the wrong or incorrect advice.

I’ve come across many cases where tearful parents have come to me after their child was turned down at the US embassy because the family did not “seek to acquire” the child’s visa within one year. They told me that they had hired an attorney to process the child and kept asking how soon the child will be here. But the attorney kept telling them that the parent has to wait until the parent adjusts status in the US before they could file the Form I-824, and that the one-year filing deadline somehow starts from the date the parent adjust status. That’s wrong. The one year filing deadline does not start from the date the parent adjust status. The one-year filing deadline starts from the date the priority date became current (or visa became available), which could have been years earlier. By the time the parent adjust status, the one year filing deadline has long past.

If your child was refused an immigrant visa under the CSPA for not complying with the one year “sought to acquire” filing deadline, but you believe that “extraordinary circumstances” exist that may excuse compliance, you may want to seek the advice of an attorney, who can evaluate your situation in light of this new Policy Memorandum.

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