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USCIS Issues Groundbreaking Memo that Enhances the Protections of the CSPA

Social_Support_for_Underprivileged_Children_and_Victims_of_Trafficking.jpgImmigration law allows the spouses and children of a direct beneficiary of an immigrant petition to accompany the direct beneficiary to the U.S. and receive their own green cards as dependent beneficiaries. To immigrate as a spouse dependent beneficiary is fairly easy. The marriage must have been created before the direct beneficiary received the green card. However, immigrating as a child dependent beneficiary can be a bit tricky.

To immigrate as a child dependent, the individual must meet the definition of “child” that is outlined in immigration law, meaning the individual must, at the time the parent receives the green card, be both unmarried and under 21 years of age. Meeting the marital status requirement is clearly easy, but meeting the age requirement could prove difficult because it would take several years for the parent to receive the green card. Even if the immigrant petition was filed before the child turned 21, it has been common for the child to turn 21 while waiting for the green card. If this happened, the child was no longer considered a child for purposes of being a dependent beneficiary because the child had “aged out.”

Thankfully, the U.S. Congress recognized the unfair result of the aging out problem and passed the Child Status Protection Act (CSPA) in order to fix this problem. The CSPA allows potential child dependent beneficiaries to “freeze” their ages to protect their eligibility for immigration benefits, no matter how long it takes for their parents to receive their green cards.

To qualify for CSPA protections, the child must meet two requirements. First, the child’s parent must file his or her own immigration petition before the child is 21. Note that filing the immigration petition means that U.S. Citizenship and Immigration Services (USCIS) must actually receive the immigration petition before the child’s 21st birthday. A postmark is not good enough. The second requirement is that, within one year of the green card’s priority date becoming current, the child must “seek to acquire” the green card.

There are three methods by which the child can seek to acquire his or her green card in order to meet the second requirement. First, if the child is currently residing in the U.S., the child can file a Form I-485 Application to Adjust Status with USCIS. (Again, USCIS must receive the I-485 Application before the year deadline. A postmark alone will not be sufficient.) The second option is for the child to file a Form DS-260 Application for An Immigrant Visa if the child lives outside the U.S. and plans to receive the immigrant visa from the U.S. embassy abroad. Finally, the child could also file a Form I-824 Application for Action on an Approved Application, also submitted to USCIS, which permits USCIS to forward the parent’s immigrant petition to the U.S. embassy for consular processing.

Any of these three applications requires time to prepare and file, so sometimes children would still miss out on receiving the green card because they were unable to meet the one-year deadline. Previously, failing to make the one-year deadline completely ended the child’s eligibility for a green card. However, thankfully the Board of Immigration Appeals (BIS) just announced a groundbreaking decision in a case that dealt with meeting the one-year deadline.

Specifically, in Matter of O. Vasquez, the BIA stated that the U.S. government may excuse a child’s missed one-year deadline in the event that “extraordinary circumstances” are present in the case. To qualify for the extraordinary circumstances exception, the child must be able to show that he or she did not create the extraordinary circumstances that resulted in the missed deadline, the circumstances were directly related to the missed deadline, and, due to the nature of the circumstances, it was reasonable that the child missed the deadline.

The Rant

This BIA case is a great move forward for foreign nationals who must wait several years to complete their immigration processing due to situations beyond their control. Continue to check with our blog to receive the latest immigration news.

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