CIS Guidance on Child Status Protection Act (09/20/02)


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 INS
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.)

MEMORANDUM FOR REGIONAL DIRECTORS DEPUTY EXECUTIVE ASSOCIATE
COMMISSIONER, IMMIGRATION SERVICES DIRECTOR, OFFICE OF INTERNATIONAL AFFAIRS

FROM: Johnny N. Williams /s/ Executive Associate Commissioner Office of Field Operations, September 20, 2002

SUBJECT: The Child Status Protection Act Purpose On August 6, 2002,
President Bush signed into law the Child Status Protection Act (CSPA)
(attached). This law amends the Immigration and Nationality Act (Act) by
changing how an alien is determined to be a child for purposes of
immigrant classification. This law changes who can be considered to be a
child for the purpose of the issuance of visas by the Department of
State and for purposes of adjustment of status of aliens by the
Immigration and Naturalization Service (Service). The purpose of this
memorandum is to provide preliminary guidance to Service officers
concerning the amendments made to the Act by the CSPA. While this
memorandum will provide examples of cases that may be effected by the
CSPA, it is impossible to anticipate and address every possible
scenario. As a note, the sections of the CSPA that address children of
asylees and refugees will be addressed in a separate memorandum.

Immediate Relatives

Section 2 of the CSPA addresses the rules for determining whether
certain aliens are immediate relatives. This section was enacted to
prevent a child from “aging-out” due to Service processing delays.
Specifically, the Service will now use the date of the filing of a Form
I-130, Petition for Alien Relative, to determine the age of a
beneficiary adjusting as the child of a United States citizen (USC). For
example, if a Form I-130 is filed for the child of a USC when the child
is 20, that child will remain eligible for adjustment as an IR-2 or as
an IR-7, even if the adjustment does not occur until after the child
turns 21, provided the child remains unmarried.

Section 2 of the CSPA also amends the Act to allow the children of
individuals who naturalize to remain classifiable as IR-2s or IR-7s if
the parent naturalized while the child was under 21. The Service will
now use the child’s age on the date of the parent’s naturalization to
determine whether the child will be eligible for immediate relative
status. For example, if a lawful permanent resident (LPR) files a Form
I-130 for her 16-year old daughter and then naturalizes when the
daughter is 20, that daughter will remain eligible for adjustment as an
IR-2 or as an IR-7, even if the adjustment does not occur until after
she turns 21.

Section 2 of the CSPA also amends the Act to allow married children of
USCs to use their age on the date of the termination of their marriage
when determining under which immigrant category to adjust. For example,
if a USC files a Form I-130 for his 18-year old married son and that son
subsequently obtains a divorce prior to turning 21, that son will be
classifiable as an IR-2 or as an IR-7, even if the adjustment does not
occur until after he turns 21.

Preference Categories

Section 3 of the CSPA addresses whether certain aliens will be able to
adjust as children of LPRs even if they are no longer under the age of
21. This section is different from Section 2 of the CSPA in that the
Service will not be looking at the Form I-130 receipt date to determine
whether an individual over the age of 21 can continue to be classified
as a child for immigration purposes. Rather, the beneficiary’s age will
be locked in on the date that the priority date of the Form I-130
becomes current (which is the first day of the month that the priority
date became current), less the number of days that the petition is
pending, provided the beneficiary seeks to acquire the status of an LPR
within one year of such availability.

For example, if a Form I-130 was filed in 1998 when the child was 20,
the priority date became available today, and the Form I-130 was not
adjudicated until today, the beneficiary’s “age” when determining
preference category would be 20 (the beneficiary is 24 today, but the
petition was pending for the 4 years), provided the “child” applies for
an immigrant visa or for adjustment of status within one year of the
priority date becoming available. If, however, this same Form I-130 had
been adjudicated in 2000, the beneficiary’s “age” when determining
preference category would be 22 (the beneficiary is 24 today, but the
petition was pending for only 2 years).

It is important to remember that section 3 of the CSPA requires that the
beneficiary apply for adjustment of status or for an immigrant visa
within one year of the date the priority date became available. Thus, if
a Form I-130 was filed on behalf of the child of an LPR, the priority
date became available 3 years ago when the beneficiary was still under
21, but that beneficiary did not apply for adjustment of status within
one year of the priority date becoming available and has since turned
21, the provisions of the CSPA will not apply to this beneficiary.

Unmarried Sons and Daughters of Naturalized Citizens

Section 6 of the CSPA provides for the automatic transfer of preference
categories when the parent of an unmarried son or daughter naturalizes,
but also provides the unmarried son or daughter the ability to request
that such transfer not occur. Examples follow:

Example 1: For August 2002, the priority date for unmarried sons and
daughters of LPRs is December 8, 1993 and the priority date for
unmarried sons and daughters of USCs is July 1, 1996. Thus, if a LPR
files a Form I-130 for his 24-year old, unmarried French son and then
naturalizes, the son’s immigrant category would automatically transfer
from the second preference to the first preference. This would be to the
advantage of the beneficiary and he would most likely not prevent such
automatic conversion.

Example 2: For August 2002, the priority date for Filipino unmarried
sons and daughters of LPRs is December 8, 1993, but the priority date
for Filipino unmarried sons and daughters of USCs is November 1, 1989.
Thus, if a LPR files a Form I-130 for his 24-year old, unmarried
Filipino son and then naturalizes, the son would most likely request
that the automatic conversion to the first preference category not occur
because a visa would become available to him sooner if he remained in
the second preference category than if he converted to the first
preference category. In this case, the son would continue to be
considered a second preference immigrant.

Effective Date

The CSPA took effect on August 6, 2002. Thus, any petition that is
currently pending with the Service is subject to the provisions of the
new law. Also, any petition that has already been approved by the
Service, but where no final action on the beneficiary’s application for
adjustment of status or for an immigrant visa has been taken, is subject
to the provisions of the new law.

Additional procedural guidance will be forthcoming shortly. Also, as
previously noted, guidance for sections 4 and 5 of the CSPA addressing
eligibility for asylee and refugee status will be addressed in a
separate memorandum. Individuals with questions relating to the
implementation of this memorandum at Service Centers should contact the
Immigration Service Division at 202-514-4589. Questions relating to the
implementation of this memorandum at District offices should be directed
to the Immigration Services Division at 202-514-2982. Any questions
relating to the policy of this memorandum should be directed to the
Residence and Status Branch of the Office of Adjudications at
202-514-4754.

Download INS memo
http://callyourlawyers.com/pdfcaselaw/INS_childprotect.pdf

Posted: Sat - September 21, 2002 at 10:35 AM          

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