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


State Department cable clarifies the main points of the Child Status Protection Act of 2000 ("CSPA"), Sample Worksheet for Calculating Age in Section 3 Cases, January 2003

Sample Worksheet for Calculating Age in Section 3 Cases
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The following is a sample worksheet that may be useful in calculating age in Section 3
cases (for principals in F2A cases, and for derivatives in all family-based and employment-based preference categories):

1. Alien's Date of Birth:

2. Date Petition Filed:

3. Date Petition Approved:

4. Length of Time Petition Pending (#3 minus #2):

5. Date Petition Became Current:

6. Date Visa Became Available (Later of #3 or #5):

7. Age of Alien on Date Visa Became Available (#6 minus #1):

8. Age for CSPA purpose: Age at time Visa Became Available minus Length
of Time Petition Pending (#7 minus #4):

CAUTION: Only apply the Age in #8 if both:

1. The alien returned the completed DS-230, Part I, within one year of
visa availability (or an I-824 was filed on the alien's behalf within
that time frame, in cases involving a derivative following to join a
principal who adjusted in the U.S.); and/and

2. Either:

(a) the petition was not yet approved on Aug 6, 2002, or

(b) the petition was approved before that date but the alien seeking
CSPA benefits either (i) aged out on or after that date or (ii) aged out
before that date but, before aging out, applied for an immigrant visa
and was refused under 221(g).
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The CSPA requires a three-step process:

First, determine whether the CSPA applies. Under the revised guidance,
the CSPA may apply to any case involving a petition approved on or after
August 6, 2002. The CSPA may also apply to certain cases involving
petitions approved before August 6, 2002, but only if either:

(a) the alien aged out on or after August 6, 2002, or

(b) the alien aged out before that date but had applied for a visa
before aging out and was refused under 221(g). If the petition was
approved before August 6, 2002 and the alien aged out before that date
and failed to apply before aging out (or applied after aging out and was
denied on that basis), then the CSPA would not apply. If the alien
applied before August 6, 2002 and was refused on any ground other than
221(g), the case must be submitted for an advisory opinion.

The CSPA applies to cases where either:

-- the petition was filed after 8-6-02; or

-- the petition was filed before 8-6-02 and was still pending (i.e., not
yet approved) on that date; or

-- the petition was approved before 8-6-02, but only if a final
determination had not been made on the beneficiary's application before
that date.

Second, if the CSPA applies to the case, then calculate the alien's age
under the CSPA.

Third, in Section 3 (preference and DV) cases, verify that the alien
sought LPR status within one year of visa availability. Under the
revised guidance, this generally means that the applicant must submit
the completed DS-230, part 1 (instead of having to file a visa
application) within one year of a visa becoming available. However, if
the principal applicant adjusted to LPR status in the U.S. and the
derivative seeks a visa to follow to join, then the law shall be
interpreted to require generally that the principal have filed a Form
I-824 for the derivative within one year of a visa becoming available.

Under the revised interpretation, if the petition was approved before
8-6-02, then the CSPA will not apply unless either: (a) the alien aged
out on or after 8-6-02, or (b) the alien aged out before 8-6-02 but,
prior to aging out, had applied for an immigrant visa and was refused
under 221(g).

A special 45-day Patriot Act rules provides that if the alien is the
beneficiary of a petition filed before Sep. 11, 2001, the alien remains
eligible for child status for 45 days after turning 21. For example, an
alien who turned 21 on August 5, 2002, but who was the beneficiary of a
petition filed before Sep. 11, 2001, would not actually age out until 45
days after the alien's 21st birthday, i.e., on September 19, 2002.
Therefore, even though the alien in this example turned 21 before the
CSPA went into effect on August 6, 2002, the alien did not age out until
after that date, and therefore the CSPA would apply to that alien's
case, regardless of whether or not the alien had filed an immigrant visa
application before August 6, 2002.

Under the revised guidance, K-4 applicants (like V applicants) cannot
benefit from the CSPA. Aliens who would convert to IR-2 status from F1
as a result of the CSPA may opt out of that conversion, which would
allow them to bring in children as F1 derivatives.

Does the Alien's Age Come Out to Be Under 21, Using the CSPA Formulas?

CSPA Section 2 Cases:

-- For IR-2/3/4: Age is determined using the age the alien had on the
date the petition was filed. (As noted in reftel, the CSPA would very
rarely be of practical use in IR-3/-4 orphan cases.)

-- For F2 Principal Cases Where the Petitioner Naturalizes and the
Applicant Could Convert to Either IR-2 or F1: Age is determined using
the age the alien had on the date the petitioner naturalized.

-- For F3 Principal Cases Where the Applicant Divorces and the Applicant
Could Convert to Either IR-2 or F1: Age is determined using the age the
alien had on the date of the divorce.

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CSPA Section 3 Cases:

-- For Principals in F2A Cases, and For Derivatives in Preference and DV
cases: Age is determined by taking the age of the alien on the date that
a visa first became available (i.e., the date on which the priority date
became current and the petition was approved, whichever came later) and
subtracting the time it took to adjudicate the petition (time from
petition filing to petition approval).

Once it is determined that CSPA applies and the alien's age is
determined, the alien's age does not change. The alien retains the same
age throughout the pendency of the case. (While the CSPA may prevent the
alien's age from changing, the alien must of course still meet the other
criteria for "child" status, including being unmarried, and therefore if
the alien marries, the alien will lose "child" status, even though the
alien's age, for immigration purposes, may be under 21 as a result of
the CSPA.)
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Download Cable :
http://callyourlawyers.com/pdfcaselaw/cpa-03JAN.pdf

R 170109Z JAN 03 FM SECSTATE WASHDC TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM AMEMBASSY DUSHANBE AMEMBASSY KHARTOUM AMEMBASSY
KABUL AMEMBASSY CARACAS UNCLAS STATE 015049 VISAS - INFORM CONSULS E.O.
12958: N/A TAGS: CVIS SUBJECT: CHILD STATUS PROTECTION ACT: ALDAC #2
REF: (A) 02 STATE 163054 (B) 02 STATE 123775

Posted: Fri - January 31, 2003 at 09:35 AM          

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