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NEW STATE DEPARTMENT CABLE DISCUSSES
WHO IS COVERED BY CSPA’S AGE-OUT PROVISION
by Michael J. Gurfinkel, Esq.
On August 6, 2002, President
Bush signed into law the “Child Status Protection Act”
(“CSPA”), which addresses the problem of minor children
losing their eligibility for certain immigration benefits as a
result of their “aging-out” (turning 21), while waiting
for a greencard. CSPA allows many “aged-out” children
of U.S. citizens and greencard holder parents to remain eligible
to receive their visas as a “child”, even though they
may be over 21 years of age.
The new law “locks in” the age of children
as follows:
- The age of the child of a U.S.
citizen will be based on the date
the petition is filed by the parent.
- The age of the child of a greencard
holder parent who subsequently naturalizes, will be based
on the age of the child on the date
the parent naturalizes.
- The age of a married child who subsequently files
for divorce will be based on the age of the child on the date
the divorce becomes final.
- The age of a derivative child of a parent’s
family petition or employment-based petition (i.e. when the
parent is being petitioned by an employer or family member),
will be based on the date an “immigrant visa number became
available for the alien’s parent” (the date the
priority date becomes current), reduced by (or minus) the number
of days during which the parent’s petition was pending
with INS. In such a case, the child must seek a greencard within
one year of when the visa becomes available.
Unfortunately, the age-out protection under
CSPA will not apply to every single child who has ever aged out.
Instead, the law provides that only certain children who aged
out before
August 6, 2002 (when the law became effective), will benefit from
CSPA. Which children could still benefit from CSPA?
A recent State Department cable addresses the issue
of those children who could potentially benefit from CSPA, as
follows:
- Any case involving a petition for a child that
was approved on or after August
6, 2002;
- Petitions approved BEFORE
August 6, 2002, but only if:
a. The child aged-out AFTER
August 6, 2002; or
b. The child aged-out BEFORE
August 6, 2002, but had applied for a visa before
aging out, and the visa was refused by the Consul under
Section 221(g)
- If both the petition was approved, and the child
aged-out BEFORE
August 6, 2002, but the child failed to apply for a visa before
aging-out, CSPA would not apply;
a. If the child applied for the visa after aging-out, and the
case was denied on that basis, CSPA would also not apply.
- If the child is seeking CSPA benefits under Section
3 of CSPA (as a derivative beneficiary under their parent’s
petition), the child must have applied for a visa within one
year of the visa becoming available. This is done by submitting
the Form DS-230.
a. If the parent adjusted status in the U.S. under an employer’s
petition or family petition, and the child is still back in
the Philippines, then the parent must have submitted an I-824
(in lieu of the DS-230) within one year of visa availability.
- In calculating a child’s age, you are
allowed to include the 45 day “grace period” of
Section 424 of the U.S.A. PATRIOT Act, in order to determine
the child’s age (i.e. if a child had aged-out on August
5, 2002 [which was before CSPA’s enactment], the child
would still be considered to have “aged-out” after
CSPA’s enactment, by adding the extra 45 day grace period).
Confusing? You bet! Even the State Department
and the INS in their cables and memos concede that CSPA is complex
and confusing. The State Dept. has now already issued two
instructional cables, attempting to interpret CSPA’s meaning
and application.
If you had a child who aged-out, and you think
that CSPA may apply to your child’s case, I strongly suggest
that you seek the advice of a reputable attorney, who can evaluate
your case, in light of the provisions of CSPA, as well as State
Department cables and INS memos, to determine if your child could
possibly benefit from this law.
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