Friday, June 27, 2008

Child Status Protection Act, CSPA

On August 6, 2002 President Bush signed the Child Status Protection Act. This new law addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of UCIS processing delays. (when children of U.S. citizens turn 21 years of age, they "age-out" of their immediate relative status to the status of family-first preference: the Fl category.) Public Law (P.L. 107-208), 08/06/02.

The new act provides that the determination of whether an unmarried alien son or daughter of a US citizen is considered an "immediate relative child" (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I-130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the case under current law.

The new law also provides similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the first situation, the age determination will be made at the time of the parents' naturalization. In the latter, the alien beneficiary's age will be determined as of the date of his or her divorce.

For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability.

In addition, the new law provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status.

Finally, the new law provides that the family-sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a petition for an unmarried son or daughter of a US citizen, unless the son or daughter elects otherwise.

Because certain aliens are subject to quota restrictions, the law provides for an orderly waiting list, based on the date that the first official step was taken to immigrate the alien. For family based applicants, this is the date the UCIS first accepted the immigrant preference petition filed on the alien's behalf. For employment based applicants, this date is the earlier of the date a labor certification was filed on the alien's behalf, or the date an immigrant preference petition was filed, if no labor certification is required. This date is known as the alien's priority date. A priority date is not "perfected" until the immigrant preference petition is actually approved. Once a preference petition beneficiary receives a priority date, he or she may be able to retain it even if the preference classification changes. For example, employment based immigrants are entitled to retain their EB priority dates even if they change jobs or move switch classifications. Similarly, family based beneficiaries are allowed to retain their priority dates if they automatically convert from one classification to another though marriage, age, or the naturalization of the petitioner.

  • Revised Guidance for the Child Status Protection Act (CSPA) 30APRIL2008: how the agency interprets the statute to apply to aliens who aged out prior to the enactment date of the CSPA. It also permits those individuals who were ineligible under the prior policy to file a new application for permanent residence. Under certain circumstances, this guidance also permits those individuals who were previously denied for CSPA to file motions to reopen or reconsider without filing fee. It also explains what steps certain aliens who do not automatically benefit from the CSPA can take to protect their status as a child. This guidance contained in the AFM update below replaces the following two memoranda: The Child Status Protection Act, issued September 20, 2002; and The Child Status Protection Act – Memorandum Number 2, issued February 14, 2003.

  • June 14, 2006 USCIS memo: Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under The Child Status Protection Act Section 6 And Form I-539 Adjudications for V Status (Opting out under the CSPA: The effect of naturalization in family-based immigration. U.S. Citizenship and Immigration Services issued a memo on June 14, 2006, clarifying that the children of a lawful permanent resident will not automatically lose V-2 or V-3 status when the parent naturalizes).

  • INS Guidance on Child Status Protection Act (09/20/02).

  • Department of State Cable on Child Status Protection Act (09/08/02).

  • Revised Cable on Child Status Protection Act, Department of State ALDAC #2 (01/03/03)(pdf)

  • Department of State ALDAC #3 (05/03/03) (pdf) PROCEDURAL INSTRUCTIONS.

  • Department of State ALDAC #4 (05/03/03) (pdf) WHAT CONSTITUTES A "FINAL DETERMINATION" ON AN APPLICATION ADJUDICATED PRIOR TO THE EFFECTIVE DATE.

  • Section 6 of the Child Status Protection Act, Joe Cuddihy /s/ Director, International Affairs, HQOPRD 70/6, March 23, 2004. Section 6 of the CSPA allows for unmarried sons or daughters of lawful permanent residents (LPRs) to remain classified as second preference aliens, even if the LPR parent naturalizes. The purpose of this memorandum is to provide guidance on adjudicating requests tendered pursuant to section 6 of the CSPA.

  • CHILD STATUS PROTECTION ACT, PUBLIC LAW 107-208 [H.R. 1209] AUG. 06, 2002.
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