IndiaPost.com - CSPA and retroactivity

(Continued from last week's article)

Regarding the second group, the Neufeld Memo indicates that some children can get CSPA coverage even if they did not have an application for permanent residence on August 2002 and did not file subsequently for permanent residence.

Such a child who had a visa number available on or after August 7, 2001 and would have qualified for CSPA coverage, but did not apply for permanent residence because of prior policy guidance concerning the CSPA effective date, may apply for permanent residence presently.

Although the Neufeld Memo upholds the retroactive application for CSPA, it only goes back to August 7, 2001. This is because as of August 6, 2002, the CSPA required children claiming protection under Section 203(h) to have sought to acquire LPR status within one year of visa availability.

How does the Neufeld Memo square with the BIA's holding in Avila-Perez? It can be argued that the unlimited retroactively concept in Avila-Perez still applies to immediate relatives covered under Section 201(f) (1) as there is no requirement, unlike Section 203(h) that the child should have sought permanent residency within one year of visa availability.

The relevant portion of the Neufeld Memo that supports this view is extracted below: (i) Adjustment as an Immediate Relative (IR). The CSPA amended section 201(f) of the Act to fix the age of an alien beneficiary on the occurrence of a specific event (e.g. filing a petition).

If the alien beneficiary is under the age of 21 on the date of that event, the alien will not age out and continue to be eligible for permanent residence as an IR. It does not matter whether the alien reaches 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 petition approval to apply for permanent residence provided the alien did not have a final decision prior to August 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the alien claims to be a child. (Emphasis added).

The Neufeld Memo does not offer any more breakthroughs in demystifying the CSPA. Many are eagerly waiting to hear how the USCIS and the State Department will interpret the "Retention of Priority Date" provision, which is codified in Section 203(h)(3) of the INA.

This provision allows for an aged-out child who cannot get protection under the CSPA to allow for the automatic conversion of the petition to the appropriate category and allow the retention of the original priority date.

The Neufeld Memo remains silent on this provision notwithstanding the BIA's holding in Matter of Garcia, which correctly interpreted Section 203(h)(3). For further details, see bia rules favorably on automatic conversion provision in CSPA, www.cyrusmehta.com. Finally, the Neufeld Memo adds some insight with respect to limited coverage for certain K-4 and K-2 aliens.

Although the CSPA does not generally cover K-4 visas or extensions, a K-4 nonimmigrant who is child of a spouse of a US citizen "may utilize the CSPA upon seeking adjustment of status because a K-4 alien seeks to adjust as an IR on the basis of an approved Form I-130."

Thus, the K-4 nonimmigrant is considered an immediate relative and the age is fixed on the date that the I-130 petition was filed by the US citizen parent. On the other hand, a K-2 nonimmigrant is inherently never covered by the CSPA status unless the US citizen parent files a Form I-130 visa petition on his or her behalf.

Note that an I-130 petition can only be filed on behalf of a K-2 child (who is a step-child of the US citizen parent) if the marriage took place before the child turned 18 years.