IndiaPost.com - Cspa and retroactivity

A new Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations, US Citizenship and Immigration Services (USCIS), Revised Guidance for the Child Status Protection Act (CSPA), HQ DOMO 70/6.1, AFM Update AD07-04 ("Neufeld Memo"), sheds new light on whether the CSPA is retroactive.

The CSPA allows, under certain circumstances, children who have turned 21 to continue to enjoy a more advantageous position as if they were still fewer than 21. Previous interpretations have suggested that an adjustment of status application must have been pending on August 6, 2002, the date of CSPA's enactment, or that an immigrant visa application should have been filed and pending at the US consulate on the date of the enactment in order for the CSPA to apply to a child who turned 21 before its enactment.

On the other hand, the Board of Immigration Appeals in Rodolfo Avila-Perez, 24 I&N Dec. 78 (BIA 2007) held that the CSPA applied to beneficiaries of immediate relative visa petitions that were approved before August 6, 2002, seeming to suggest that the CSPA had unlimited retroactive application.

While Avila-Perez was an important breakthrough, it was unclear whether the decision extended to all CSPA beneficiaries (See BIA rules that child status protection act retroactively applies to children of us citizens. Avila-Perez involved the beneficiary of an approved I-130 petition filed by a US citizen under the immediate relative category.

Section 201(f) (1) of the Immigration and Nationality Act (INA) freezes the age of a child upon the filing of a petition (Form I-130) by the US citizen parent. Therefore, even if the child turns over 21 after the filing of the I-130 petition, the child at any time thereafter can still qualify as an immediate relative of a US citizen. On the other hand, INA Section 203(h) extends "age out" protection to the children of legal permanent residents.

This provision covers children who have directly been sponsored by their parents under the Family 2A preference or who are accompanying or following to join family-sponsored, employment-based and diversity immigrants.

The age of the non-citizen child is determined on the date on which an immigrant visa becomes available, reduced by the number of days the petition was "pending." But, unlike the treatment of immediate relative children under Section 201(f) (1), this provision will only trigger if the child has sought to acquire permanent residency within one year of such availability.

It is therefore uncertain whether Avila-Perez, holding that the CSPA applied retroactively, also applied to CSPA beneficiaries under Section 203(h) because the provision only triggers if the child has sought to acquire permanent residence within one year of availability. The Neufeld Memo now indicates that the CSPA beneficiaries under Section 203(h) are also covered retroactively, but under limited circumstances.

The Neufeld Memo covers two groups of non-citizen children who may have become eligible prior to August 6, 2002. With respect to the first group, the Neufeld Memo clarifies that a non-citizen child who did not have an application for permanent residence pending on August 6, 2002, and who subsequently filed an application for permanent residence that was denied solely because he or she aged out, may file a motion to reopen or reconsider without a filing fee if : (a) the child would have been considered under the age of 21 under applicable CSPA rules; (b) the child applied for permanent residence within one year of visa availability; and (c) the child received a denial solely because he or she aged out.

(To be continued)