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The CSPA new case and how to apply for the Green Card even if you aged out

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.

Can I still Immigrate to the United States as a child even though I am 26 years old?

Question: My Father petitioned me years ago and I am just getting around to applying. However, I am over 21 years old. I heard about the CSPA. What is it and how can it help me?

Answer: The CSPA stands for Child Status Protection Act and it is meant for persons in your situation. It came into being on August 2002. There are different provisions, but there are some parts that should apply to you right away.

First, under the CSPA, if the petitioner is a U.S. Citizen, and the age of the child is under 21 years old, then the age is locked in under Immigration Law under the CSPA. Thus, if you were petitioned by your father when you were 20 years old and now your are 26 years old, that is not a problem. Under the CSPA, you are 20 years old – even if you are really 26 years old. Your age will never change under the CSPA in this instance. Thus, you can apply for adjustment of status at any time as a child.

Question: What if my father was only a Lawful Permanent Resident as the petitioner?

Answer: In that case, there is some more analysis that must be done. However, the first thing to look at is whether he qualifies to become a U.S. Citizen before you would turn 21 years old. If he qualifies, then he should apply right away. If you were to approach 21 years old, then he could get the Naturalization expedited. As long as he would become a U.S. Citizen before you were to turn 21 years old, then your age will be locked in under the CSPA and you will never have to worry about aging out.

Question: What if I’m not so lucky and my father does not qualify for Naturalization?

Answer: In that case, then we must look under another provision of the CSPA. In this case, or in any other case where the petitioner is not a U.S. Citizen, there is a several part analysis that must be made. 1. You must find out when the visa number became current. This is done by looking at the visa chart on the first of the month and year upon which it became current. 2. You must then look at how long the I-130, I-140 or I-526 or Diversity Lottery Application was pending. Generally, look at when it was filed and then when it was approved. 3. Take your age on the date the visa number became current and subtract the time the petitions listed above were pending. This is your age for CSPA purposes. If it is under 21, then you are a child for CSPA purposes. 4. Then you have 1 year from that time in which to take action on the petition. If you do not, then you will not be able to fall under the CSPA.

Question: I heard there is some part of the CSPA that applies specifically to Filipinos. What is that?

Answer: While it does not specifically list Filipinos in the law, it clearly was meant to help Filipinos when the following situation arises. Normally when the petitioner is a Lawful Permanent Resident and the beneficiary is a son or daughter over 21 years old and the petitioner then becomes a U.S. Citizen, the visa waiting list time is much less (years less.) However, it is actually backwards in the Philippines. Thus, under the CSPA when the preference automatically changes from preference F2b to preference F1, the beneficiary can elect to actually go back to preference F2b so that they do not have to wait multiple years more because the petitioner became a U.S. Citizen.

Question: What about if the beneficiary is a child of the mother or father actually being petitioned by the grandparent or uncle?

Answer: In this case, there is considerable dispute in Immigration as to how they handle these cases. However, the law states essentially that the aged out child will be able to basically use the same old priority date and consular process or adjust without having to wait the many years it normally takes for such a petition. It is a great provision, but many times you will have to fight to get USCIS to approve it.

Thus, while there are several provisions under the CSPA, if they are not used or not applied correctly, then there will be many years of needlessly waiting.

Overview of the Child Citizenship Act

Overview of the Child Citizenship Act – Avvo.com http://ping.fm/C4XLt

CSPA Status

On the CSPA, if the age has locked in, then actual petition can be filed after age-out

When is the CSPA Applies?

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)

Do you fall under The Child Status Protection Act?

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.

Title:How to Age-out without having to Age-out

Question: My mother filed a petition for me some years back. I will be 21 years old in September of this year. My understanding is that I am now an immediate relative which allows me to come into the U.S. right away when the Visa Number becomes current. However, once I am over 21 years old, I understand that I will move to a different preference and could actually wait over 10 years to be reunited with my mother. Is this true and is there anything I can do?

Answer: First, you are correct in your current assessment of the situation. However, the President of the United States has just signed a bill which will be most beneficial to those who will ‘age-out’. This is a term for a person whom is about to turn 21 years old and not be eligible for ‘immediate relative status’. The new bill is referred to as the Child Status Protection Act.

Question: What exactly is an Immediate Relative and how does this bill help me?

Answer: An Immediate Relative are those relationships that the U.S. Government deems so important that it does not place any numerical limitation on those who qualify and the only waiting someone has to do for this category is processing time. Other than immediate relatives, there are several other types of petitions that people must wait years for the visa number to become current. Examples of immediate relative petitions are spouses of U.S. Citizens, children whom are unmarried and under 21 years old of U.S. Citizens and parents of U.S. Citizens over the age of 21 years old. Normally, the beneficiary must obtain their Green Card BEFORE they turn 21 years old if it is a child.

Now, based upon the Child Protection Status Act, if the petition was filed for a child, the age of the child is determined when the petition is FILED, not when it is approved.

If the petition was filed based upon a Lawful Permanent Resident parent petitioning a child, they must usually wait many years. Once the parent naturalizes and becomes a U.S. Citizen, then an immediate relative petition can be filed. In this new law, the age of the child at the time the parent naturalizes is what determines immediate relative status, not the time at which the petition is approved. Therefore, for you, your mother must see if she qualifies to become a U.S. Citizen, and apply for Naturalization right away. She should try to get it expedited.

If a married son or daughter of a U.S. Citizen gets divorced and the petition is converted to single child under 21 of a U.S. Citizen, the date the married son or daughter gets divorced is the date to determine if he or she is an immediate relative, not the date the converted petition would get approved.

Question: I have a child who is 3 years old. Assuming I qualify for this new law, what about my daughter?

Answer: Fortunately, the new law also takes care of this type of situation. If a spouse or child is not considered to be an immediate relative themselves, they can apply under this new law to join the spouse or parent as in your case.

As you can see, the U.S. Government has taken significant steps toward helping to unify the Family Unity. This is an excellent piece of legislation and hopefully will be used to its fullest extent.

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