NEW HOPE FOR CHILDREN WHO AGED-OUT BEFORE AUGUST 6, 2002
by Michael J. Gurfinkel, Esq.

On February 9, 2007, the Board of Immigration Appeals (BIA) issued a decision holding that children of U.S. citizens who turned 21 before August 6, 2002 could still be eligible for the age-out benefits of the Child Status Protection Act (CSPA).   This decision could have far-reaching effects for so many children of U.S. citizens, because the Department of Homeland Security (DHS) and the Department of State (DOS) had previously taken the position that children of citizens who turned 21 before August 6, 2002, were not eligible for CSPA benefits.

If you petitioned your child as an "immediate relative" (minor child of U.S. citizen) and your child aged-out before CSPA's effective date of August 6, 2002, you should immediately seek the advice of a reputable attorney who could perhaps help your child get his or her green card.

In that BIA decision, the child was born in April 1976 .   In August 1996 , his mother filed a petition for him (Form I-130) as an immediate relative (minor child of U.S. citizen).   That petition was eventually approved in November 1996.   He then turned 21 in April 1997 .   Ordinarily, the petition would convert from immediate relative to F-1 (adult single child of citizen).

In October 2003 , he filed for adjustment of status (Form I-485).   This was already many years after he turned 21, and was after CSPA's effective date of August 6, 2002.   The DHS argued that he was ineligible to be classified as a "child" under CSPA, because he had aged-out before CSPA's effective date of August 6, 2002.   According to DHS, CSPA would apply to a child who had aged-out before August 6, 2002, only if  

(1) His visa petition remained "pending" (i.e. not yet approved) on the date of CSPA's enactment, or

(2) His petition had already been approved, and he filed an adjustment application on or before August 6, 2002, on which "no final determination" (or decision) had been made.  

Thus, although this child's petition had been filed and approved before he reached 21, DHS claimed he was not eligible for adjustment of status, because the adjustment was filed after CSPA's effective date.  

After examining the language and the history of the CSPA, the BIA held that "upon review of the legislative history of the CSPA, we find no indication that Congress intended to exclude from coverage of the CSPA those individuals whose visa petitions were approved before its effective date, but who waited until after its effective date to file an adjustment application... We conclude that Section 8(1) of the CSPA, as enacted, does not require an individual whose visa petition was approved before its effective date to have an adjustment application pending as of the date of its enactment."  

Therefore, if you are a U.S. citizen, who filed a petition for your minor child (which was approved before August 6, 2002), but your child later "aged-out," this case could benefit your child.   This is possible even if your child aged-out long before August 6, 2002.   (Remember that in this particular case, the child had aged-out in 1997 , but the BIA still held that CSPA applied to him.   This was even though he filed his adjustment application in 2003--more than a year after CSPA was enacted).

That is why it is so important, when it comes to your children, that you seek the advice of a reputable attorney, who may be able to "bring back to life" a case that was previously denied, to enable your child to get his or her green card at the soonest possible time.

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