Overview of the Child Citizenship Act – Avvo.com http://ping.fm/C4XLt
Filed under: Child Citizenship Act, cspa, Immigration Attorney, Immigration Lawyer, USCIS | Tagged: Brian D. Lerner, Child Citizenship Act (CCA), cspa, Immigration Attorney, Immigration Lawyer, Law Offices of Brian D. Lerner | 1 Comment »
On the CSPA, if the age has locked in, then actual petition can be filed after age-out
Filed under: Aged-out, cspa, Immigration Attorney, Immigration Lawyer, USCIS | Tagged: Aged-out, cspa, Immigration Attorney, Immigration Lawyer, USCIS | 6 Comments »
CSPA applies when an I-130 is filed for : 1) Child of an LPR under 18 years old; 2) Parent is a USC (by birth or naturalization); 3) Parent has legal and physical custody and 4) child is residing in the U.S.; 5) the child is under 18 when the parent naturalizes. You can see specifics at section 320(a)
Filed under: cspa, Immigration Attorney, Immigration Lawyer, los angeles immigration attorney, USCIS | Tagged: cspa, Immigration Attorney, Immigration Lawyer, los angeles immigration attorney, USCIS | Leave a comment »
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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Filed under: cspa, Immigration Law, immigration provisions, Nonimmigrant Visa, USCIS | Tagged: cspa, Nonimmigrant Visa | 1 Comment »
Question: I know that President Bush has signed into law the new Child Status Protection Act (CSPA) on August 6, 2002. However, I am very confused on whether this law applies to me. Can you clarify how I know if I have ‘aged-out’ under the new law?
Answer: First, there are sections that apply to Immediate Relatives. Generally, these would be spouses of U.S. Citizens, parents of U.S. Citizens over 21 years of age and sons/daughters of U.S. Citizens who are under 21 years of age and unmarried.
Thus, most of the child age-out provisions will apply to the last category. Here, if the beginning of the family petition is filed BEFORE the child turns 21, then no matter how long it takes, that child will be deemed to be a child for immigration purposes.
Question: What if my parent was a Lawful Permanent Resident when he filed for me and I was under 21 at the time, but now my parent has become a U.S. Citizen?
Answer: In this case, the date that your parent naturalizes will control. Therefore, if your parent naturalized and you were 20 years old, then you will be considered a ‘child’ who will not age-out for this act. Therefore, it would be critical if your parent has not yet naturalized, and you are under 21 years of age, that they immediately begin naturalization proceedings.
Question: What if my friend was married at 18 years of age and then got divorced at 20 years of age? Will he qualify?
Answer: Yes. If his U.S. Citizen parent has petitioned him, then he will automatically move to the preference which is set for single son and daughters of U.S. Citizen Parents.
Question: Is the law retroactive and how do I know if I fall under it?
Answer: It appears as though current interpretation is that if there was a final decision on the case, that it is not retroactive. However, if the case is still pending, it appears that it will fall of the provisions of this act. Please note that the interpretations by the Department of State seem also to indicate that if derivative beneficiaries have not had a final approval on the case, but that the main applicant has, that it still could fall under this act.
Therefore, anyone who has been waiting years for this petition to become current, only to learn that they must wait many more years after becoming a U.S. Citizen, should take advantage of this law right away. All of these interpretations are from the Department of State. They have specifically stated that they might be able to change those interpretations after interagency communications. Therefore, what is stated here might change as time goes on. It hopefully will change to allow even more people fall under the provisions of this particular law.
Filed under: cspa, Immigration Law, immigration provisions, Naturalization, USCIS | Tagged: cspa, Naturalization | Leave a comment »
Question: I know that the Child Protection Act has been passed on August 6, 2002. However, I am still confused if I fall under this provision. Can you help to clarify?
Answer: Yes. The Child Status Protection Act (CSPA) makes certain allowances for people who have become older than 21 years old, but can still have their applications processed as though they are under 21 years old.
IMMEDIATE RELATIVES: The first category is Immediate Relatives. These people will be able to be considered to be able to immediately apply to adjust their status to that of a Lawful Permanent Resident, even though they may be over 21 years old. If you are in the U.S. and want to adjust your status to that of a Lawful Permanent Resident, there are a couple of grounds upon which to do this under the Immediate Relative provisions of the CSPA.
If you are under 21 years old when a petition is filed for you by your U.S. Citizen parent, you will be considered to have not ‘aged-out’ even if your status is not adjudicated until after you are 21 years old. The critical factor will be when the initial I-130 is filed. It is how old you are on the date the I-130 is filed that will determine if you remain a “child” for purposes of not ‘aging-out’.
Question: What if my parent was a Lawful Permanent Resident when the I-130 was filed, and later became a U.S. Citizen?
Answer: In that case, the critical date that will determine if you are a child who will not age-out will be the date your parent became a U.S. Citizen, not the date the I-130 was filed. For example, let us say that the I-130 was filed when you were 18, and your parent naturalized when you were 20 year old. In this example, even if the adjustment was not done until after you were 21 years old, you would be considered to remain at 20 years old and therefore, not to have aged-out when you turn 21 years old. It makes it critically important that your parent become a U.S. Citizen right way if they are eligible if you happen to be less than 21 years old.
Question: What if my parent is not eligible to become a Naturalized U.S. Citizen? Can I still avail of the CSPA?
Answer: In this case, the date that the Immigration and Naturalization Service will look at to determine if a person is a ‘child’ under the CSPA will not be when the I-130 is filed, nor when the parent would become a U.S. Citizen, but rather, when the priority date becomes current. It is critically important that if you fall under this category, that you make certain that you file for Adjustment of Status within ONE year of the priority date becoming current. Otherwise, you cannot fall under the provisions of the CSPA.
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Filed under: cspa | Tagged: Adjustment of Status, child status protection act, cspa, Immigration, Immigration Attorney, Immigration Lawyer | Leave a comment »
Question: I have been waiting many years to become a Lawful Permanent Resident. My father petitioned me many years ago. My priority date was almost current, and then my father became a U.S. Citizen. Afterwards, I actually had to wait many more years. He only became a U.S. Citizen because he thought it would speed up the process. Is there anything I can do?
Answer: Actually, the Child Status Protection Act (CSPA) had a provision that addressed your exact concern. On August 6, 2002, the President signed into law the Child Status Protection Act (CSPA), Public Law 107-208, 116 Stat. 927. Section 6 of the CSPA allows for unmarried sons or daughters of lawful permanent residents (LPRs) to remain classified as second preference aliens, even if the LPR parent naturalizes. In other words, this provision actually applies only to people from the Philippines at this point as in the rest of the world the priority date is years closer when the parent petitioner becomes a U.S. Citizen.
Section 6 of the CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also provides the unmarried son or daughter the ability to request that such transfer not occur. There are certain instances when the visa availability dates are more current for the unmarried sons or daughters of LPRs than for the unmarried sons or daughters of United States citizens. In such instances, it would be to the advantage of the alien beneficiary to request that the automatic conversion to the first preference category not occur because a visa would become available sooner if the alien remained in the second preference category than if he converted to the first preference category. As of this date, the Department of State Visa Bulletin shows that visa availability in the first preference category is more current than for the second preference categories, except for beneficiaries from the Philippines. As such, it is anticipated that only beneficiaries from the Philippines will seek to take advantage of the CSPA.
Question: I heard about the CSPA and was told to write a letter that I wanted to go back to the 2nd preference, not to stay at the 1st preference which I automatically was move to at the time my father had petitioned me. I did not know who to write the letter to, but sent off such a letter requesting to be changed to 2nd preference. However, to date nothing has changed.
Answer: I agree that this has been a problem. In the past, we would write Immigration and they would tell us to write the National Visa Center. Then, we would write the National Visa Center and they would tell us to write Immigration. It was a game of finger pointing without any resolution. However, guidance from Immigration has just come out.
All beneficiaries in the Philippines wishing to opt out of the automatic conversion must file a request, in writing, addressed to the Officer in Charge, Manila. The Officer in Charge shall provide written notification, on official U.S. Citizenship and Immigration Services letterhead, of a decision on the beneficiary’s request to the beneficiary and to the Department of State’s visa issuance unit. If the beneficiary’s request is approved, then the beneficiary’s eligibility for family-based immigration will be determined as if his or her parent had never naturalized and they will remain a second preference alien.
Filed under: cspa, Family Petition, Immigrant Visa, Immigration Law, immigration provisions | Tagged: cspa, USC | Leave a comment »
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