Child Status Protection Act

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A “child” under U.S. immigration law is eligible in most cases to immigrate with his or her parents.  However, that eligibility was historically cut off the moment a child reached the age of 21 and thus “aged out.”  Because of government processing delays and lengthy visa backlogs, this affected many families.  Often, these families were forced into the heart-rending decision of leaving their “aged out” children behind in their home countries or giving up potentially better lives in the United States.

Recognizing this widespread hardship, the Child Status Protection Act (“CSPA”) was enacted in 2002.  The CSPA contains two important provisions which, as the law’s name suggests, seek to protect a child’s status for immigration purposes.

First, when a parent reaches the front of the “priority date” line, the CSPA allows children to subtract from their age the time that the underlying visa petition was pending.  For example, if a parent was sponsored by a relative and the Immigration Service took six months to approve that petition, the son can subtract those six months from his age on the date the parent is first eligible for permanent residence.  If the son’s age on that date was 21 years, 3 months, he can subtract those 6 months, making his “CSPA” age 20 years, 9 months.  As long as the son seeks to acquire permanent residence within a year, the “child” status is preserved and he can immigrate along with his parents.

The second provision is more complicated and controversial.  If a child’s age is over 21 even after making the adjustment discussed above, that child is supposed to keep the parent’s place in line and automatically convert to the proper visa category for permanent residence.  This would properly give the children credit for the years they have already spent waiting in line, and will dramatically expedite family reunification.  Unfortunately, the Immigration Service has taken an extremely narrow reading of this provision, and has limited its application to only one visa category.  Two different federal appeals courts have disagreed with this reading, and the Mayorkas v. Cuellar de Osorio case currently before the Supreme Court of the United States will resolve this issue.  The primary question in thecase is whether a child who was the derivative beneficiary of a family-based immigrant petition but “aged out” can apply the old petition’s priority date to a new petition by a new petitioner. Oral argument in this case will occur on December 10, and a decision will likely come either in March or June 2014.

A Supreme Court rejection of the Immigration Service’s narrow reading of CSPA would be the news many families have been waiting years for. At Dyer Immigration Law Group, our immigration attorneys would be happy to review your case to determine if the CSPA could help your family reunite or remain together, and to discuss the impact that the Supreme Court’s decision in Cuellar de Osorio stands to have on your case.

Call us toll free at 1.877.377.1247 to schedule an appointment at our office in Richmond or Fredericksburg. We speak English, Spanish, Portuguese, French, German and Swedish.

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