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Opinion

CSPA: What is the ‘sought to acquire’ requirement?

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

The Child Status Protection Act (CSPA) provides age-out protection for certain children beyond their 21st birthday, allowing them to be processed for a visa as though they were still under 21 years of age.

For employment and most family-based petitions, CSPA eligibility is a two-step process:

• Calculate the child’s CSPA age.

• Make sure the child “seeks to acquire a visa” within one year of the priority date being current.

In a previous article, I discussed how to calculate your child’s CSPA age. In this article, I will discuss how to comply with the “sought to acquire” requirement.

Sadly, I encountered many CSPA cases where the child’s age was calculated to be under 21, but their case was nevertheless denied/refused because they failed to timely seek to acquire a visa within one year from the priority date becoming current.

So, the question is, “How does a child properly and timely seek to acquire a visa?” Here are some critical things to be aware of:

When does the one year “sought-to-acquire” time period begin? The one-year clock for seeking to acquire a visa starts running from the date the priority date became current on the monthly Visa Bulletin. If one full year passes without the child seeking to acquire a visa, then they may not be eligible for CSPA benefits.

Even if a parent is adjusting status in the US and the child will later follow to join, the one-year clock for seeking to acquire a visa still applies when the priority date becomes current and not when the parent finally adjusts status.

You must be aware of when the priority date became current to meet the one-year deadline, versus making excuses that the National Visa Center (NVC) did not notify you until after that one year passed. It is not NVC’s responsibility to remind you about due dates and deadlines. Sometimes their “welcome” letter is sent out more than a year after the priority date becomes current or a visa becomes available. Or, the NVC may have notified the family close to the deadline, but the family did not submit the fees or forms until after that one-year deadline.

How can a child satisfy the sought to acquire requirement? There are several ways that a child can satisfy the “sought to acquire” requirement, provided it is done within one year of when the priority date became current:

• Submitting a completed Form DS-260, part one for the child or paying their fees within one year of a visa becoming available.

• If the parent is adjusting status in the US and the child will process abroad, submitting a Form I-824 within one year of the visa becoming available.

• Filing a Form I-864, affidavit of support, that includes the child.

• Filing a Form I-485, Adjustment of Status, on behalf of the child within one year of visa availability if the child is adjusting in the US.

• Some other “concrete step” on behalf of the child, evidencing the child’s desire to pursue his or her visa.

What are “extraordinary circumstances” that could excuse a delayed filing? If you missed the one-year deadline to seek to acquire a visa, the child may still benefit from the CSPA if they can demonstrate “extraordinary circumstances” for missing the one-year deadline. These include: serious illness or mental or physical disability during the one year; where they attempted to timely file an adjustment of status but it was rejected; death or serious illness or incapacity of the applicant’s attorney or a member of the applicant’s immediate family; or if a person hired an attorney and the attorney missed the one-year deadline.

Note: For children of US citizens, it is much simpler.  The citizen parent merely has to file the petition before the child’s 21st birthday. The child has no “sought to acquire” requirement.

The CSPA is very complex and confusing. If you have a child who has aged out or will be aging out and you believe the CSPA could benefit your child, or if you missed the deadline and believe extraordinary circumstances exist excusing your missing deadline, I recommend that you consult with an attorney who can evaluate your situation, perform the necessary and complex mathematical computations to determine and prove your child’s CSPA eligibility, and help you seek to acquire a visa within one year.

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WEBSITE: www.gurfinkel.com Follow us on Facebook.com/GurfinkelLaw, YouTube: US Immigration TV and Instagram.com/gurfinkellaw Four offices to serve you: Los Angeles; San Francisco; New York: Toll free number: 1-866-GURFINKEL (1-866-487-3465); Philippines: +632 88940258 or +632 88940239

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