NVC is giving retroactive effect to the Child Status Protection Act

IMMIGRATION CORNER - Michael J. Gurfinkel -

The Child Status Protection Act (CSPA) became effective on August 6, 2002 and provided age-out protection for certain children. For example, if a US citizen filed a petition for his child while that child was under 21 years of age, the CSPA provides that the child’s age would be “locked in,” at being under 21, and the child would continue to be considered a minor even after aging out.

However, the USCIS and the National Visa Center (NVC) had taken the position that the CSPA did not apply retroactively to children who aged out before CSPA’s effective date, meaning that if the child aged out before August 6, 2002, they were “out of luck.”

In February 2007, the Board of Immigration Appeals (BIA) decided the case of Avila-Perez, in which the BIA held that the CSPA applied to the child of a US citizen, even if the child aged out before August 6, 2002. So, the BIA held that the CSPA should be applied retroactively.

Thereafter, on April 30, 2008, USCIS came out with a memo effectively adopting the Avila-Perez decision, by stating that, “If the alien beneficiary is under the age of 21 on the date of that event [filing of a petition by their US citizen parent], the alien will not age out and continue to be eligible for permanent residence as an IR. It does not matter whether the alien reached the age of 21 before or after the enactment date of the CSPA, when the petition was filed, or how long the alien took after the petition approval to apply for permanent residency…”. So, the USCIS was also giving retroactive effect to the CSPA.

However, even though the BIA and USCIS were giving retroactive effect to the CSPA, the NVC was not. (The NVC handles immigrant visa processing for children outside the US, who will be processed for green cards at the Embassy.)

Our office had several clients in the Philippines, who had been petitioned by their US citizen parents before their 21st birthdays, but the child aged out before August 6, 2002. In those cases, the NVC had declined to keep the classification as IR (“immediate relative”), and instead re-classified the child as F-1 (single adult child of US Citizen), where the waiting time for a visa is about 15 years.

We believed the CSPA should nevertheless apply to those children, and wrote to NVC, pointing out the Avila-Perez decision and the April 30, 2008 USCIS memo, arguing that children should retain immediate relative classification, even though they aged out before CSPA’s effective date.

Well, there is good news. After previously declining to classify our aged-out clients as immediate relatives (because they turned 21 before August 6, 2002), the NVC recently wrote to us that, “Due to a re-interpretation of the Child Status Protection Act” (CSPA) the visa category for this case has been changed to IR2-immediate relative child of a US citizen under 21. Immediate Relative categories are not numerically limited. A visa is currently available for this category once the case is documentarily qualified.”

In other words, it appears that NVC is now also giving retroactive effect to the CSPA for immediate relative children of US citizens who aged out before CSPA’s effective date of August 6, 2002.

I think that the NVC’s position is also significant because it appears that the NVC is now following USCIS guidance concerning the interpretation/application of the CSPA. (Previously, the NVC had sometimes taken the position that the NVC was not bound by the USCIS interpretations, or by decisions of the BIA.)

If you are a US citizen who petition your child before the child was 21, and your child aged out before August 6, 2002, you may want to seek the assistance of an attorney, who can work with you to have the NVC properly classify your child as an immediate relative, even though your child is now over 21 years of age.

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WEBSITE: www.gurfinkel.com

Four offices to serve you: PHILIPPINES: 8940258 or 8940239; LOS ANGELES; SAN FRANCISCO; NEW YORK : TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)

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