By Charles Wheeler
The Child Status Protection Act (CSPA) keeps certain children of LPRs, as well as certain derivative children, from aging out. The law allows them to hold on to their F-2A or derivative status if they are under 21 on the date the priority date becomes current using their “adjusted” age (i.e., after subtracting the period the relevant petition was pending). In order to preserve their F-2A or derivative status, however, the child must seek to acquire LPR status within one year of the visa being available. INA § 203 (h)(1)(A). If the child fails to do this, the CSPA protections will not apply, and the child’s biological age will control. The one-year filing requirement does not apply to immediate relatives.
The requirement of having “sought to acquire” LPR status has been narrowly defined by the USCIS and Department of State. But at least three unpublished BIA decisions and one circuit court have opened the door for a more expansive reading. The BIA recently issued a published decision that analyzes this issue, affirms the agencies’ strict filing requirements, but creates a limited exception – extraordinary circumstances – that can be applied in situations where the child has not filed one of the three designated applications. Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).
Background. The USCIS and Department of State (DOS) have defined the term “sought to acquire” as filing an application for adjustment of status (Form I-485), an application for an immigrant visa, or a Form I-824. As long as the child files one of these applications within one year of the visa becoming available, he or she has satisfied this requirement.
The date on which the visa becomes available is the first day of the month when the Visa Bulletin indicates that the priority date is current. In some rare circumstances the I-130 petition will still be pending on the date the second-preference F-2A visa number becomes available. In those situations, the beneficiary cannot begin consular processing or file for adjustment of status until the petition is approved. According to USCIS, the “date that a visa number becomes available is the approval date of the Form I-130.” Therefore, the one-year window within which to seek LPR status will not begin to run until the I-130 is approved.
Derivative beneficiaries may not adjust status until the principal beneficiary has obtained LPR status. This may cause a problem for those who are in the United States and waiting for the principal beneficiary to consular process. They can file an application for an immigrant visa as a protective measure to satisfy the one-year requirement. Then they would postpone the interview and withdraw the application to pursue adjustment of status after the principal has immigrated. This would entail paying the immigrant visa processing fees and then forfeiting that money in order to pursue adjustment of status. The alternative – filing for adjustment of status before the principal beneficiary has immigrated – would not be permitted, since the statute requires that the applicant be “eligible to receive an immigrant visa.”
For those who are consular processing, “sought to acquire” is satisfied by submitting a completed DS-230 Part 1 or DS-260, Application for Immigrant Visa and Alien Registration, within one year of the visa becoming available. For the derivative child to satisfy the one-year filing requirement, he or she must have submitted a separate application. It is not enough that the principal beneficiary submitted one covering only the principal.
In some cases, the immigrant visa applicant will have returned the DS-230 Part 1 or DS-260 before the visa becomes available. This is because the National Visa Center (NVC) often sends out the fee bill and instructions in anticipation of the visa becoming current in the near future. In those cases, if the DS-230 Part 1 or DS-260 is received before the priority date is current, the applicant will have satisfied the one-year filing requirement.
In other cases, the applicant may not have received the fee bill and instructions from the NVC before or at the time the visa became available. This may be due to a variety of reasons. Nevertheless, the one-year filing period will begin to run from the date the priority date becomes current. The applicant or designated agent will not be able to download the DS-230 Part 1 or DS-260 from the DOS website until he or she has first paid the fee bill and received the bar code from the NVC. Contact the NVC by e-mail at email@example.com or firstname.lastname@example.org to resolve the situation.
Principal beneficiaries who adjusted status in the United States may need to file a Form I-824, Application for Action on an Approved Application or Petition, with USCIS in order to immigrate a derivative spouse or child who is residing abroad. Form I-824 may be filed concurrently with the adjustment application. If immigrating more than six months after the principal adjusted, these derivatives will be processed as “following-to-join.” After approval, the I-824 is forwarded to the NVC, which will start processing the immigrant visas for the derivatives. The DOS has stated that filing Form I-824 will satisfy the requirement to seek LPR status, provided it is done within one year of the visa becoming available. Presumably, filing an I-824 to obtain a duplicate copy of the I-130 approval notice also will satisfy the requirement, but there is no official confirmation on that. This may also be an option for the derivative beneficiary described above who wishes to adjust status in the United States but must wait until the principal beneficiary has obtained permanent residence through consular processing.
The DOS has also indicated that there are other ways to initiate the following-to-join process, in addition to filing an I-824. Presumably, these might include notifying the consulate directly that the principal beneficiary has adjusted and is requesting consular processing of the derivatives. The consulate in Ciudad Juarez, Mexico, however, as well as most other consulates, no longer permits a procedure that would bypass the NVC. The DOS stated that it will consider “other concrete step[s]” within the one-year period as satisfying that requirement. But consular posts should submit those cases to the Visa Office for an advisory opinion. To date, however, the DOS has refused to provide any examples of what action might constitute “concrete steps” or what would satisfy the one-year requirement short of filing the DS-230 Part 1, the DS-260, or the I-824.
It should not matter whether the adjustment applicant who filed an I-485 within the one-year window ultimately obtains LPR status through that application or through a subsequent application for an immigrant visa. Similarly, it should not matter whether an immigrant visa applicant who submitted a DS-230 Part 1 or DS-260 within the one-year window later abandons that application and files to adjust status. In both cases, the intending immigrant has satisfied the one-year requirement by filing one of the designated forms. There should be no requirement that the form that was filed within the one-year window be the vehicle used to obtain LPR status, although there is no official confirmation of this.
BIA Non-Precedent Decisions. The BIA, in its first unpublished decision, interpreted the phrase “sought to acquire” to include actions other than simply filing the above-referenced applications. Matter of Ji Young Kim, A77 828 503, 2004 WL 3187209 (BIA Dec. 29, 2004). In that case, the BIA found that seeking the assistance of an attorney within the one-year window to prepare the application for adjustment of status satisfied the requirement. The BIA found that the statutory language “sought to acquire” is broader than “filed,” and includes acts that “try to acquire or gain” or “make an attempt to get or obtain.” The BIA cited congressional intent for the CSPA, “which was to protect an alien ‘child’ from ‘aging out’ due to ‘no fault of her own.’” It also cited language from a Ninth Circuit decision finding that the CSPA “should be construed so as to provide expansive relief to children of United States citizens and permanent residents.” Padash v. INS, 358 F.3d 1161, 1172 (9th Cir. 2004).
In a subsequent decision, also unpublished, the BIA reached the same conclusion with similar facts. In re: Jose Jesus Murillo, A99 252 007, 2010 WL 5888675 (BIA October 6, 2010). The adjustment of status applicant had sought out the assistance of an immigration attorney within one year of the priority date becoming current. The attorney had filed the application within a “reasonable period thereafter (20 months)” and before the applicant had turned 21. The BIA found that the term “sought to acquire” LPR status “is broad enough to include substantial steps taken toward the filing of the relevant application during the relevant time period but which fall short of actual filing or submission to the relevant agency.”
In a third unpublished decision, the BIA also found that the one-year filing requirement had been satisfied even though the child had not filed the application in a timely manner. In re Castillo-Bonilla, A98 282 359, 2008 WL 4146759 (BIA Aug. 20, 2008). In that case, the alien was in removal proceedings and informed the immigration judge of his intention to file for adjustment of status as a form of relief to deportation. It was requesting permission to file, rather than the actual filing, that satisfied the one-year requirement.
11th Circuit Decision. The only federal court decision interpreting this statutory language was issued last summer. Tovar v. Attorney General, No. 10-11314 (11th Cir. 2011). In the case before the appellate court, the client had first indicated that she would consular process. When she failed to reply to notices from the NVC, the agency indicated its intent to terminate the case and revoke the approved petition. The applicant responded by indicating her continued interest in pursuing the application. More than three years after the visa became available, she shifted her strategy and applied for adjustment of status. By that time she had aged out of the F-2A category using her biological age. She argued, however, that her age was frozen on the date the priority date became current and that her communication with the NVC satisfied the one-year “sought to acquire” requirement.
The federal appeals court looked at the literal language of the statute, as well as the three unreported BIA decisions on this issue. The appeals court found the BIA’s reasoning to be compelling. While it held that the applicant in this case had not taken sufficient steps within the one-year time frame, it issued an important directive to the agency. It stated: “We find the BIA’s reasonable interpretation in these cases to be persuasive and in sync with the intent of Congress in enacting the CSPA. Hence we conclude that Congress’s use of the term ‘sought to acquire’ in the CSPA is broad enough to encompass substantial steps taken toward the filing of the relevant application during the relevant time period, but does not require that the alien actually file or submit the application.”
Recent Published BIA Decision. With that backdrop, the BIA analyzed a case involving a derivative child who had aged out of the F-2A category for failure to file for adjustment of status within the one-year time period. The child argued that he satisfied the requirement because the parents had “consulted with a notario about filing an application within that period.” The BIA first looked at the phrase “sought to acquire” and determined that the language was not “plain and unambiguous.” It therefore gave deference to the agencies’ interpretation, which it found to be reasonable. The reason Congress did not choose the word “sought” and not “filed,” according to the BIA, was because it needed a word that would encompass applications that are both “filed” with the USCIS and “submitted” to the DOS. The BIA also found the one-year window to be sufficiently long as “to expect the proper filing of an application, when it comes to DHS cases, as a way to unquestionably satisfy” the requirement. Defining it in this way also promotes “consistency and predictability, which are important principles in immigration law.”
The BIA then proceeded to carve out two important exceptions to this hard and fast rule. The first would be in cases where the alien did attempt to file the required application, but it was rejected for procedural or technical reasons. In those cases, failure to satisfy the one-year rule would be excused if the applicant files it within a reasonable period after its return. The second exception is when the alien can demonstrate “extraordinary circumstances” that prevented his or her filing on time. The BIA drew an analogy to section 203(g), which allows the DOS to terminate a case where the immigrant visa applicant fails to respond to NVC notices or fails to attend the consular interview within one year. But this termination can be reversed during a subsequent one-year period if the applicant establishes that the failure was due to reasons beyond his or her control.
The BIA offers as an example of this second exception a case where the alien “paid an attorney to assist in filing a timely adjustment application and completed and executed the application with the attorney’s aid prior to the deadline, but the attorney then failed to take the ministerial step of timely filing the application with the appropriate agency…” In contrast, merely contacting an attorney for legal advice would not be sufficient; the action taken by the alien would need to “approximate the filing of an application.” The BIA specifically rejected the Eleventh Circuit’s “substantial steps” standard as too vague and generous, although it noted that under the facts in Tovar the applicant did not satisfy even that test.
Conclusion. Before this recent decision, some practitioners had been successful in convincing local USCIS offices to follow the BIA’s unpublished holdings or the reasoning of the 11th Circuit and accept actions beyond filing for adjustment of status. After this published decision, expect the USCIS to take a more consistent and rigid position. The first exception set forth by the BIA is straightforward. The second exception still allows room for argument and advocacy on which circumstances qualify as “extraordinary” or “beyond the alien’s control.” It will take more than simply going to an attorney, accredited representative, or immigration consultant to obtain assistance in the immigrant visa or adjustment-of-status process. But those who received ineffective assistance after seeking representation, especially if they completed the relevant application, should argue that they satisfied the one-year requirement. Other examples of extraordinary circumstances might include health-related factors, being the victim of domestic violence, or DOS errors in issuing the fee bill.