By Ben Loveman & Nancy E. Miller

The Child Status Protection Act (CSPA) has been a hot topic of late and the subject of some good and bad news for parents seeking to reunite with their children in the United States. Last month, the U.S. Supreme Court issued an unfortunate decision denying aged-out children the chance to reunite with their families through priority date retention.  That was the bad news.  The good news came on June 6, 2014 in the form of a USCIS policy memorandum which expanded the sought-to-acquire compliance definition.  The new policy affects adult children who, although initially eligible for CSPA, failed to timely seek the relief and lost their protection.  If they qualify, they will be able to seek immigrant visas or adjustment of status.  The new policy will also allow these children whose cases were previously denied for not timely seeking to acquire the opportunity to file a motion to reopen to seek a new decision under the new policy.

The children affected by this policy are those who benefit from a formula under CSPA which allows the child to remain under 21 for immigration purposes even though they are over 21 chronologically.  However, in order for these children to take advantage of this benefit, they must to seek to acquire their permanent resident status within one year of the priority date becoming current. Seeking-to-acquire basically means taking an active step toward getting their green card.  What steps will meet that compliance will vary depending on whether the child is seeking to adjust their status in the United States or seeking to immigrate through consular processing.

The new policy applies to children who failed to take the appropriate action and provides a mechanism which will allow for CSPA protection if the child can demonstrate that the failure to file within one year was the result of extraordinary circumstances.    Under this new policy, USCIS will have discretion to waive the one-year filing requirement at the discretion of USCIS if certain criteria are met and it is established that the failure to file within one year was due to extraordinary circumstances.  The policy memorandum instructs USCIS officers to exercise discretion in favor of the applicant if:

(1) the circumstances were not created by the individual’s own action or inaction;
(2) the circumstances were directly related to the failure to act within the one-year period; and
(3) the delay was reasonable under the circumstances.

USCIS has not created an exhaustive list of potential circumstances which would justify CSPA protection for a child who seeks to acquire residency late but has provided some examples of circumstances which might warrant a favorable exercise of discretion and a finding that CSPA protection is merited based on extraordinary circumstances.  These circumstances include:

• Legal disability, such as mental impairment

• Serious illness or mental / physical disability during the one-year period

• Ineffective assistance of counsel

• Timely filing rejected by the USCIS, followed by a prompt, corrected filing

• Death or serious illness or incapacity of legal representative or immediate family member

Finally, the new policy includes an allowance for the filing of a motion to reopen for applicants who had their cases denied solely based on missing the one-year filing deadline.  Although motions to reopen are generally required to be filed within 30 days of a decision, USCIS has indicated that it will allow late-filed motions to reopen in this type of case.  Further, even if a motion to reopen is not filed, the applicant could seek to have the new policy applied to their case in conjunction with a new application for adjustment of status or immigrant visa application.

The CSPA, as with the U.S. immigration law in general, is complex and can be difficult to navigate.  This new USCIS policy allows a reprieve and a second chance for some children who failed to meet one of the key CSPA requirements if they can demonstrate the failure was the result of extraordinary circumstances.  Whether or not a particular case will meet USCIS’s definition of extraordinary circumstances will come down to the particular facts of that case and then, more importantly, how the case is prepared and presented to USCIS.  All persons whose cases might be impacted by this new policy should consult an experienced and knowledgeable immigration attorney immediately because, as with the sought-to-acquire requirement, time is of the essence.

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