Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

CSPA Status

6 Responses

1. 

   Brian D. Lerner, on October 17, 2012 at 3:24 pm said:

   Can you get the Green Card even if your over 21 years old?

   Question: My auntie petitioned my mother when I was 3 years old. However, the visa process is so slow that it took 22 years for the visa number to become current. I was over 21 when my mother got her Green Card and the U.S. Embassy said that I aged out and could not come. Is there something that can be done without me having to wait another 10-15 years for a petition from my mother to become current?

   Answer: Normally, in that case, once the child ages out, they cannot qualify to come as a derivative. There are, however, certain instances under the CSPA (Child Status Protection Act) whereby the derivative can show he or she is under the age of 21 (under immigration law.) However, in this case, that would not be applicable. Given that, the question then becomes whether you can still fall under any particular provision of the CSPA.

   In this case, there was the BIA case Matter of WANG which specifically denied the priority date retention provision of the CSPA. However, the 9th Circuit Courts of Appeal has just come out with a decision which overruled the BIA and has stated essentially that this provision of the CSPA does stand and needs to be followed.

   Question: What is this case and what does priority date retention mean?

   Answer: First, it is necessary to understand basic immigration family petitions. You have a petitioner which is either the U.S. Citizen, or a Lawful Permanent Resident petitioning the beneficiary (which is the person who wants to come into the U.S.) Once the petition is filed (assuming it is not an Immidiate Relative) will be put into a visa line and only when the visa becomes current (sometimes many years later), can they immigrate to the U.S.

   In many of these cases, the child is eligible to immigrate as a derivative at the time that the petition is filed, but once the visa number becomes current, they “age-out”. This can also occur as a direct occurrence for example from a Lawful Permanent Resident petitioning a child under 21.

   Question: What exactly is the provision of the CSPA that was ruled on in the 9th Circuit case?

   Answer: Well, first you have to try to do the age reduction calculation to see if the beneficiary is actually under 21 for immigration purposes. This means that even if their real age might be over 21 years their immigration age would be under 21 and they can immigrate. However, for purposes of this new case, it is only for those derivative beneficiaries and beneficiaries that have not only aged out, but cannot have their age determined to be under 21.

   The CSPA in those cases under the particular provision of the CSPA, will have a petition that is automatically converted to the appropriate category. In other words, let’s say that in your example that an aunt petitioned your mother and you aged out and you cannot reduce your ‘immigration age’ to under 21. In that case, their application is automatically converted for a petition from your mother to you. This would be a Lawful Permanent Resident petitioning a son/daughter over the age of 21. This would be preference F2B.

   Then the next part is the key. The CSPA allows you to then recapture or use the priority date of the petition from your auntie’s petition to your mother. As you stated, you were 3 years old when the petition was filed and you were about 24 years old when the visa number became current. This means, that under the CSPA (and now the 9th Circuit Class Action suit that agreed with the provision of the CSPA) that the priority date of the now automatically created petition is the SAME as the one your auntie filed for your mother. Therefore, the priority date will be basically over 20 years old the very moment the petition is automatically created. Since that number is now current, you can then come into the United States under this petition now. You have the petition and the visa number is current. Therefore, you can process right now to get the Green Card.

   Question: So, what did the Ninth Circuit case do?

   Answer: In fact, USCIS and other government agencies were denying this provision of the CSPA. They basically stated it was not supposed to do what was clearly in the law. Thus, now with the affirmation of the Ninth Circuit case, we can proceed forward with all of these CSPA cases.

   LikeLike
2. 

   Sonia Ovalles Reyes, on July 15, 2012 at 8:01 pm said:

   Good day Sir Brian!

   Last June 1, 2012, I (with my husband and 19 year old daughter) arrived here in the US through a petition filed by my sister back in Aug.1987. However, it is sad to note that we left behind (in the Philippines) our 4 other children and 2 grandchildren who have “aged-out” when our papers came last August 2009.

   Our four children, born Jan. 10, 1983, May 19, 1985, Feb. 15, 1987 and Feb. 6, 1988 were all so sad when the day of our departure came. In reality, the three elders were included in the petition of my sister for me and the two younger ones were not born yet then. The youngest born in 1990 was lucky to have been able to join us because of her age, though as I mentioned earlier, she was not part of the original petition.

   We do not quite understand the CSPA very well into its entire context because as it reads, the elder children should have joined us also because they were only more than 5 years old and younger when the petition got approved back in October 1987. It was a matter of time when the visa became available in 2009 (that they have aged-out).

   Can you further enlighten us on the possibility of our children joining us soon? Awaiting the Visa News Bulletin every month only gives us futile hopes to be reunited again as a family. My two children have been living-in with their long time partners (because we do not want them to get married for petition purposes) and have had children already.

   Hoping we get a better view of our future together again, all with your assistance.

   Lastly, please give us some monetary quotations as to more or less how much we will be needing in the request to seek your guidance on our concern.

   Thank you so much. God bless you and your team as you continue to work for the reunification of families.

   Respectfully,

   Sonia O. Reyes

   LikeLike
3. 

   Brian D. Lerner, on September 30, 2010 at 3:05 pm said:

   Hello:

   What is your situation and how can I help?

   LikeLike
4. 

   rostum g. aquino, on September 21, 2010 at 1:31 am said:

   Sir, im from Manila,Philippines do you have an office here? how can i contact you? my landline is 5131585, cellphone is 09278082422. thank you and hope to hear from you soon.

   LikeLike
5. 

   Brian D. Lerner, on September 20, 2010 at 5:49 pm said:

   Hello:

   Please contact my office.

   LikeLike
6. 

   rostum aquino, on September 13, 2010 at 9:10 am said:

   our petition has become current 13 april, 2010. my daughters born dec.23,1984 and june 2, 1986. our priority date is dec. 7, 1992., approval of 1 130 is feb. 9,1993. do they qualify for cspa?

   LikeLike