Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I am very confused if I fall under the Child Status Protection Act (CSPA.) I have heard various things and just do not know if I qualify. Can you shed some light on this subject?

Answer: Yes it is true that there has been some confusion as to whether or not certain cases apply to the Child Status Protection Act. Within the last week, the Bureau of Citizenship and Immigration Services (BCIS) has issued some new interpretations of the CSPA. Unfortunately, some of the regulations limit what and who can fall under the CSPA.

First, the BCIS now states that the terms of the CSPA are not retroactive. Hence, persons whom age-out and would possibly fall under the CSPA must age-out after August 6, 2002 in order to qualify.

Question: Are there any exceptions to this age-out rule?

Answer: Yes. If you aged-out after August 6, 2002, but the petition has not yet been adjudicated or ruled upon. Also, if the petition has been ruled upon, but the adjustment of status application is still pending you would qualify for this exception.

Question: If I qualify for some other nonimmigrant visa, can I use the sections of CSPA?

Answer: No. Especially listed are the K (for fiancée related beneficiaries) and V (for persons with family petitions pending for over three years.)

Question: When is it actually determined if a person “ages-out”?

Answer: This occurs on the date of the visa number availability. Therefore, you would need to find out exactly when the visa became available and then find out exactly how old the beneficiary was on that date. This will apply not only to the beneficiary, but to the derivative beneficiaries as well.

Question: I have a friend who would have a current visa number available, but his father (the petitioner) became a U.S. Citizen and now the visa number availability is years off. Can he do anything?

Answer: Yes. A simple letter to the BCIS will suffice to show that he wants to retain the old preference. His visa number will become current, and he will be able to adjust his status.

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