Although President Bush signed into law the Child Status Protection Act (“CSPA“) nearly two months ago, many questions remain unanswered as to who will actually benefit from the law and what actions green card applicants must undertake to ensure that benefits are not lost. In an effort to answer some of these questions, the INS Office of the Commissioner issued a memorandum providing some initial guidance to regional INS offices in the adjudication of benefits under CSPA.
The CSPA was designed primarily to prevent the problem of “age-out,” where alien children have been denied benefits through direct and derivative immigrant visa petitions because they reached the age of 21 while their application was pending. Since the Immigration and Nationality Act defines “Child” as an unmarried son or daughter under the age of 21, such alien beneficiaries would lose entitlement to green cards in many cases due to INS and State Department processing delays, even though they may have submitted timely applications for benefits.
The problems inherent in the “age-out” rule resulted in immigration attorneys having to file lawsuits in the US District Court to compel speedy INS action on such cases, and persistent telephone prodding at the Embassies around the world to ensure that aging out alien beneficiaries would be issued visas in time to arrive in the United States prior to their 21st birthdays. The CSPA will largely do away with the need for attorneys to file expensive lawsuits, stay up all night on the telephone or perform any other such miracle work.
The CSPA changes the definition of “Immediate Relative,” as it pertains to children of United States citizens, to mean an unmarried son or daughter of a United States Citizen, under the age of 21 at the time the I-130 immigrant visa petition was filed. Additionally, if a green card holding parent filed an I-130 for an unmarried son and became a Naturalized United States citizen before the child reached the age of 21, the child remains eligible for permanent resident status even if the child is admitted as a permanent resident after the age of 21.
For most other family preference petitions filed on behalf of alien relatives and their children, the INS will look to the date on which the petition’s priority date becomes available to “lock in” the child’s age for the purposes of obtaining permanent resident status. The child’s “age” is determined by subtracting the time the Petition was pending from the child’s age on the date the priority date becomes available.
Therefore, if a green card holding parent filed an I-130 visa petition on behalf of a 18 year old child in 1998, and the priority date becomes available and the INS approves the petition in 2002, the child’s age for the purposes of adjustment of status is still 18: Even though he was 22 years old when the INS approved the petition and the priority date became current, the Petition had been pending for four years. In these circumstances, the beneficiary must file for his green card within one year of the date on which the visa becomes available, or he will lose benefits under the CSPA.
The CSPA also solves the problem many Filipinos confront when a green card holding Petitioner desires to file for naturalization, but has “second preference” petitions pending for single sons or daughters over the age of twenty one. For the Philippines, the wait for “First Preference” single sons and daughters of United States citizens over the age of twenty-one, is several years longer than under the second preference.
Many Beneficiaries of visa petitions have suffered extended delays over the past ten years when their green card holding parent naturalized, sometimes following the misguided advice of friends or “consultants” believing that the Petitioner’s naturalization would hasten the process. Other Petitioners who understood the problem were prevented from filing for naturalization for fear that their sons and daughters would be forced to wait many more years before they could immigrate. Under the CSPA, any beneficiary whose Petition would have changed categories from second to first preference because of the Petitioner’s naturalization may choose to maintain the second preference category for the petition, to avoid the unfair result outlined above.
The CSPA is a highly technical law that will undoubtedly give rise to differing interpretations between immigration attorneys and even the State Department and INS. Pending new regulations to implement the law, INS and State Department memoranda will fill in any interpretive gaps for the time being. Any Petitioner or beneficiary who believes he or his family may be affected by these important changes should bring his questions to a qualified immigration attorney who can clearly explain his rights under the CSPA.