(Child Status Protection Act)
OHANA… I cannot forget this word. The first time I heard it was in Lilo and Stitch which I saw with my wife and son. It was very timely. We were just waiting for the U.S. Embassy to call us for the interview. I was reluctant to leave. I had a good law practice in Manila. My son just got admitted in the honor’s section of the Ateneo, but we were sure he would get a better education in the U.S. My wife enjoyed taking care of the family, but she had to be with our son. I would stay, they would go.
Then we heard Lilo : “Ohana means family, family means nobody gets left behind. Or forgotten.”
That’s it. Either we all stay or we all go.
But not all families are as lucky. Many of them do not have the choice that we had the luxury of having. Some family members get left behind by force; usually the innocent children whose only fault is being born too early into this world. Much too prematurely, they get separated from their parents and siblings. I am often told this sad story, and each time it pains me to hear it from my misty-eyed clients.
The culprit of course is the long waiting time for immigrant petitions, especially for family petitions where the backlog is from 5 years (for spouses and minor children of immigrant) to as much as 23 years (for siblings). As we very well know, once a child turns 21, he is dropped from the petition as a derivative beneficiary of his parents.
The familiar way to deal with this situation is for the parents to petition their aged-out child (used here as a generic term for a son or daughter) the moment they get their green card. But this will mean many more years of waiting. Chances are, the child will get married in the meantime, which will mean the revocation of the petition (immigrants cannot petition for their married children).
The Child Status Protection Act (CSPA)
There is one glimmer of hope, fortunately. In 2002, the Child Status Protection Act (CSPA) became law. The CSPA is only a short law, but it deals with several complicated situations. For the case we have cited, the relief may come from either of two ways.
First is that the CSPA may be able to “freeze” the child’s age at below 21.
Second is that the CSPA may allow the child to use the October 15, 1997 priority date of his grandfather’s petition.
Freezing the Child’s Age
Let’s discuss how SCPA can freeze the child’s age because the child will still be considered a minor, even if he is now over 21. He will then be able to accompany or join the parents into the United States.
But, there are 2 conditions for freezing the child’s age. First, his CSPA age must be below 21 at the time the visa becomes available. The visa becomes available as of the first day of the month of the visa bulletin. This is quite technical so let me illustrate this. The visa bulletin for February 2009 says that for FB-3 petitions (married children of U.Ss citizens), the priority date being processed is June 1, 1991.
Let us present a hypothetical case for you. Assume that an FB-3 petition was filed by your U.S. citizen grandfather for your father. In this petition, your father is the primary beneficiary while your mother and you are the derivative beneficiaries. You remain a derivative beneficiary as long as you are below 21 years of age.
Assume that your petition has a priority date of June 1, 1991. This means that as of February 1, 2009, there is already a visa available for the your father as principal beneficiary and also for you and your mother as a derivative beneficiary. To satisfy the first condition, your CSPA age must be below 21 on February 1, 2009.
The CSPA Age
How do you determine the CSPA age? Let us also say that you were born on January 1, 1988. You are already 21 years, 1 month old as of February 1, 2009. Ordinarily, you have aged-out. But when you checked the files, you discovered that it took the USCIS 3 months to approve your grandfather’s I-130 petition. It was filed on June 1, 1991 (received by USCIS on same date) and was not approved by the USCIS until September 1, 1991. The 3 months will be deducted from your age, so your CSPA age will be 20 years and 10 months only. Moreover, it will not matter if the interview takes place in June 2009. Your CSPA age will still be 20 years and 10 months.
The second condition is that you must have sought to acquire an immigrant status within one year from visa availability. This condition is difficult to satisfy because either there was no CSPA yet (prior to 2002) or very few people (including immigration attorneys) understood the intricacies of the CSPA. For example, a child left behind in 2001 will have no way of applying for an immigrant visa within one year because that relief was not available for him at that time.
Recently, the USCIS issued a Memo which seems to do away with the one-year requirement for those whose visas became available on or after August 7, 2001. Under this revised memo, aged-out children whose parents got their immigrant visas on or after August 7, 2001 may still have their age frozen under the CSPA even if they fail seek to acquire immigrant status within one year.
Using the Original Priority Date
But what if, after making all these computations, your age is still over 21? Well, there is still hope. The CSPA also says that “If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(4) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”
In the above example, let us assume that you were instead born on July 1, 1987. You will turn 21 on July 1, 2008. On February 1, 2009 (when the visa becomes available), you will be 21 years and 7 months old. Even if we deduct the 3 months, your CSPA age will still be 21 years and 4 months.
Here’s the good news, and it is divided into 3 parts. The first part is that your grandfather’s petition shall automatically be converted, which should mean that you do not have to do anything. The conversion of the petition happens by operation of law.
The second part is that the automatic conversion shall be to the appropriate category. What does this mean? This should mean that since you have over-aged, you will fall under the 2B category (unmarried son) of your father. Remember what we said earlier? Without the CSPA, your father would be filing a new 2B petition for you? Now, under the CSPA, your father need not file the new petition. Instead, the original petition of your grandfather, insofar as it concerns you, will be automatically converted into a 2B petition with your father as the petitioner (This is rather obvious, because your grandfather cannot be your petitioner. There is no category for grandchildren under the law).
The third and best part is that you “shall retain the original priority date issued upon receipt of the original petition”. This is your father’s priority date under your grandfather’s petition which is June 1, 1991. This will be your priority date in the new 2B petition. This is even much earlier than the priority date being processed right now (which is October 15, 1997). This means that an immigrant visa is already available for you. You will be able to your parents in migrating to the United States. Ohana! The family stays together.
It is strange that you will be having an earlier priority date than your father. This is because children of U.S. citizens have to wait longer than children of immigrants. In effect, aging out will expedite your petition.
The CSPA is a very complicated law. Until now, the USCIS seems to be ambivalent as to the exact interpretation of its varied provisions. There have been several conflicting memos from the USCIS since 2002. Even lawyers devote a lot of time studying CSPA cases. Considering the tremendous benefit it offers you and your aged-out child, we encourage you to consult an attorney to help you understand your case and hopefully successfully pursue it before the USCIS.