gurfinkel_new_photo_thumb_medium115_157

 

The Child Status Protection Act (CSPA) provides protection for certain children who aged out (turned 21).

For the children of non-citizens (such as derivative beneficiaries of employment or family based petitions, or minor children of immigrants), there is a two step process:

1. Calculate the child’s age based on a mathematical formula; and

2. The child must “seek to acquire” his or her visa within one year of when that visa becomes available (or priority date was current).

In many cases, a child's age is calculated to be under 21, but he or she is nevertheless denied a green card because the child neglected to “seek to acquire” the visa within one year.

But what does “seek to acquire” mean?

According to the USCIS and the State Department, “seeking to acquire” is typically accomplished by filing a Form I-824 (Application for Action on an Approved Application or Petition), DS-230 (Application for an Immigrant Visa and Alien Registration), or Form I-485 (Adjustment of Status) on behalf of the child.

But many parents get confused about this requirement and miss that one-year deadline.

But there is renewed hope!

Recently, the Board of Immigration Appeals (BIA) ruled that “sought to acquire” does not require the filing of an application, form, or other documents in order to satisfy this requirement.

Instead, “sought to acquire” could include “substantial steps taken toward the filing of the relevant application during the relevant time period but which fall short of actual filing or submission to the relevant agency.”

In that recent case, the BIA determined that the family's hiring of an attorney to prepare the application and obtaining a money order within that one year time period, constituted “substantial steps,” even though the actual application was filed after the one year time period has passed.

In that recent BIA case, the child’s adjustment of status application was filed more than one year after the visa became available.

However, the parent established that he had hired an attorney to file the adjustment of status before that one-year deadline.

The USCIS had denied the adjustment application, contending that the “sought to acquire” language in the CSPA contemplates only the actual filing of an application.

Because the adjustment of status application was not filed within one year of visa availability, the child was out of luck.

The BIA disagreed with the USCIS, pointing out that the CSPA used the term “sought to acquire” rather than “file,” demonstrating that Congress intended that the alien must merely “make an attempt to get or obtain status as a lawful permanent resident within 1-year of visa availability,” which involves lesser actions than “filing.”

The BIA noted that the whole purpose of the CSPA was to “bring families together,” and that the CSPA should “be construed so as to provide expansive relief to children of United States citizens and permanent residents.”

Therefore, the term “sought to acquire” lawful permanent residence...“is broad enough to include the parents” hiring an attorney and obtaining a money order (for the filing fees) within one year of visa availability.

I note that this BIA decision is “non-precedent,” meaning that the USCIS or State Department can argue that they are not “bound” to follow it.

But those agencies really need to take a step back and take into account Congressional intent behind the CSPA.

I think that the BIA’s reasoning is correct: the statute does not say that the child must “file” anything.

It merely says that they must “seek to acquire.”

Congress has said that the CSPA is supposed to be expansive, not restrictive.

This is yet another case where the BIA has confirmed that hiring an attorney, or taking other substantial steps, satisfies this requirement.

I think that if the governmental agencies follow the reasoning of these BIA cases they would be implementing the proper application of this law, in accordance with Congressional intent.

If your child was denied CSPA benefits because the child supposedly did not “seek to acquire” a visa within one year of availability, you may want to seek the advice of a reputable attorney, who can evaluate your situation, and determine if your child truly is eligible.

***

Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York.

All immigration services are provided by, or under the supervision of, an active member of the State Bar of California.

Each case is different.

The information contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter.

No attorney-client relationship is, or shall be, established with any reader.

WEBSITE:

www.gurfinkel.com

Call toll-free to schedule a consultation for anywhere in the U.S.:

1-866-487-3465 or (866) - GURFINKEL

Four offices to serve you:

LOS ANGELES • SAN FRANCISCO • NEW YORK • PHILIPPINES

Add comment


Security code
Refresh

Latest comments