By Attorneys Ben Loveman & Nancy E. Miller

On July 29, 2015, the US Citizenship and Immigration Services (USCIS) posted a new policy memorandum on its website providing guidance to its officers and to the public regarding the Child Status Protection Act (CSPA).  The policy memorandum was previously circulated as a proposed policy and appears to have been finalized on April 15, 2015 (the date on final version of the memo).  The new policy clarifies and expands the applicability of the CSPA.

The newly finalized policy memorandum will allow many children who were previously determined to be ineligible for CSPA protection a chance to reapply and potentially qualify for permanent residency if certain requirements can be met. The new policy could also spur persons who previously did not apply because of perceived ineligibility to apply for permanent residency.

As many of our readers know, the CSPA was passed by Congress to mitigate the problem of children ‘ageing-out’ as derivatives under their parent’s cases which resulted in familial separation.  A child is no longer considered a child for the purpose of qualifying as a derivative beneficiary of a parent’s petition when they reach their twenty-first birthday.  The CSPA provides a mechanism which allows certain children to remain children despite reaching the age of twenty-one.

The implications of the new policy can only be understood if we first take a step back and see how the CSPA operates to protect children from ageing-out.  The CSPA allows children to freeze their age and deduct the amount of time the qualifying petition was pending with USCIS from their age but only if  they seek to acquire permanent resident status within one year of the availability of the immigrant visa number (also known as the “priority date”). Thus, the key triggering event for CSPA protection is the child taking affirmative action to seek to acquire resident status.  The child must do this within one-year of a visa becoming available as determined by reference to the monthly Department of State Visa Bulletin.

The newly adopted USCIS policy allows for exceptions to the one-year deadline for seeking to acquire. This means that in some cases persons who have failed to seek to acquire within one-year may remain eligible for CSPA protection.  The policy memorandum states that this one-year deadline can be excused if the failure to seek to acquire resident status was not the child’s fault and was the result of extraordinary circumstances.

The policy memorandum instructs USCIS officers to examine cases to determine if CSPA protection applies and to grant CSPA protection if extraordinary circumstances are established and: (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 provided an all-encompassing list of qualifying circumstances which would establish eligibility for waiver of the one-year deadline but instead has laid out several examples of circumstances which couldmitigate in favor of USCIS excusing an applicant seeking to acquire residency beyond the one-year deadline.  These circumstances include: legal disability, such as mental impairment, serious illness or mental or physical disability during the one-year period, ineffective assistance of counsel , timely filing rejected by the USCIS, followed by a prompt, corrected filing, and death or serious illness or incapacity of legal representative or immediate family member.

Finally, the new policy allows applicants whose cases were denied based on failure to meet the one-year filing requirement to file a motion to reopen for further consideration of their case.  A motion to reopen must usually be filed within 30 days of a decision but USCIS will allow late-filed motions to reopen in this type of case.  The ability to file a late motion to reopen will only apply to persons who had their cases denied between June 8, 2012 through the issuance of new policy.  However, applicants who were denied prior to that date can reapply for resident status if they can meet the requirements discussed above.

The CSPA was passed to help ensure family unity.  USCIS’s new policy will allow the CSPA to protect even more families as it allows exceptions to the previously rigid one-year rule.  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.  We encourage all persons whose cases might be impacted by this new policy to speak with an experienced immigration attorney.

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