CSPA: Ten Fact Scenarios That May Surprise You
In the almost 15 years since the Child Status Protection Act was implemented, most practitioners probably have a basic grasp of the fundamental principles. But it has subtleties and more areas of complexity. Let’s do a quick review.
If a family-based petition is filed on behalf of an immediate relative child, the beneficiary will immigrate in that category regardless of how long it takes for the petition, subsequent application for adjustment or an immigrant visa to be adjudicated. This is also true if the child started out in the F-2A category and the petitioner naturalized before the child turned 21; or if the petition was filed on behalf of a married child in the F-3 category, but the child divorced before turning 21. In all of these cases, the child’s status is frozen as an immediate relative and, absent the child getting married, he or she will immigrate as an immediate relative.
Children in the F-2A category do not convert to the F-2B category upon turning 21 if their “adjusted age” is younger than 21 on the date the priority date becomes current for the F-2A category. Adjusted age is calculated by reducing the biological age by the period of time the I-130 petition was pending. The same calculation is made to determine if derivative children in all of the family or employment-based preference categories can retain their derivative status. In other words, look at the adjusted age of the child in the F-2A or derivative category at the time the priority date in the relevant category becomes current using Chart A, Final Action Dates, of the monthly Visa Bulletin. If they are under 21 on that date, their F-2A or derivative status will be preserved provided they seek Lawful Permanent Resident status within one year. This is satisfied by filing for adjustment of status (Form I-485), for an immigrant visa (paying the immigrant visa fee, paying the affidavit of support fee or filing the DS-260), or filing a Form I-824.
Here are some examples of how the CSPA plays out in consular processing and adjustment of status.
Hypothetical #1. An LPR father filed an I-130 petition for his unmarried son on Sept. 15, 2014, in the F-2A category. The child was born on April 1, 1995, and was 19½ years old at the time. The petition was approved on Dec. 15, 2014, or three months later. The priority date became current on Sept. 1, 2015, using Chart B, Dates for Filing and the National Visa Center sent a fee bill. The child’s biological age was 20½ at that time. The applicant promptly paid the bill, then filed the DS-260. The National Visa Center recently sent a notice that the son converted from the F-2A to F-2B category. Wasn’t the child’s age frozen when he paid the visa fees or submitted the DS-260?
Answer. Unfortunately, it is the date the priority date becomes current using Chart A and not Chart B that triggers whether the child has aged out or not. The CSPA calculation cannot be applied until that time. The NVC sends out the fee bills and allows applicants to apply if they are under 21 using their biological age at the time the priority date is current in Chart B. So in this case the child was under 21 on Sept. 1, 2015. Nevertheless, the child did not know at that time whether he or she would still be able to proceed in the F-2A category. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. On that date, the child was 21 years and five months. The petition had been pending for three months before it was approved, so that period of time can be subtracted from the child’s age. However, the child would still have been over 21 using his adjusted age on the date the priority date became current using Chart A. The client had satisfied the separate one-year filing requirement, but the problem was that he had aged out. If the child is still unmarried when the F-2B finally becomes current, he can continue with consular processing. He does not have to the immigrant visa fee again.
Hypothetical #2. Same facts except we jump forward and the priority date in the F-2B category is now current. The father just naturalized and the child converted to the F-1 category, which is backlogged at least another year. Can the child opt out and stay in the F-2B category?
Answer. Yes, the CSPA allows for op- out from the F-1 to the F-2B category. The F-1 category is currently backlogged for longer than the F-2B category for beneficiaries from all countries, though this is subject to volatility. Therefore, when the parents naturalize and the sons and daughters over 21 convert from F-2B to first preference, they actually extend the time they must wait for their visa to become current. The CSPA eliminates this inequity by allowing these beneficiaries to elect whether they want to automatically convert to the first preference or opt out and stay in the F-2B category. The applicant “should file a request in writing with the District Office having jurisdiction over the beneficiary’s residence.” The statutory language in section 6 of the CSPA is mandatory and thus requires the agency to accept the applicant’s written statement opting out of the automatic conversion.
Hypothetical #3. Same facts except the client was born on August 15, 1994. He turned 21 using his biological age when the priority date became current in Chart B on Sept. 1, 1995, but using his CSPA age, he was still under 21. Nevertheless, the NVC is refusing to issue a fee bill and the client is worried about satisfying the one-year filing requirement.
Answer. In this case the applicant had already turned 21 using his biological age at the time the priority date became current using Chart B. The calculation for CSPA cannot be made until the priority date becomes current using Chart A. The NVC will not issue the fee bill for someone in this position, even though he might still qualify to process in the F-2A category. The same is true for derivative children who have already turned 21 using their biological age when the priority date becomes current using Chart B. There is no fear of losing CSPA protection due to the one-year filing requirement, since that one year does not start to run until Chart A becomes current.
Hypothetical #4. Same facts except the child was born on August 15, 1995, and was listed as a derivative on the petition filed for his mother. On Oct. 1, 2016, the priority date became current using Chart A. The derivative child’s age is under 21 using the CSPA calculation (subtracting three months from his biological age). The mother is able to adjust status, and said she would do that on the I-130, while the child is overseas and will have to use a consular process. The NVC will not issue a fee bill for the child because the agency has not received an approved petition, and the child is concerned about the one-year filing requirement.
Answer. The mother needs to file a Form I-824, Application for Action on an Approved Application or Petition. She can file it at the time she files her I-485, Application to Register Permanent Residence or Adjust Status. When U.S. Citizenship and Immigration Services approves her I-485, it will also approve the I-824. When the NVC receives the approved I-824 and the case file, it will start processing the derivative child. In this case, his age is frozen on the date his priority date became current using Chart A. He will be considered to have satisfied the one-year filing requirement as long as the I-824 is filed within one year of the priority date became current.
Hypothetical #5. Same facts, except the mother is consular processing and the child is present in the United States and eligible to adjust status.
Answer. In this situation the child cannot file for adjustment until the principal beneficiary, his mother, has received her immigrant visa and entered the United States as an LPR. The child may experience a problem satisfying the one-year filing requirement. The child is classified as a derivative, but he could lose that status unless he files for adjustment within one year of the priority date becoming current. One option would be for the mother to file an I-824 and request a duplicate I-130 approval notice. USCIS has not confirmed that this would satisfy the one-year filing requirement, though it would seem to satisfy the literal requirement. Another option would be for the child to consular process and file the DS-260 or pay the immigrant visa fee within one year of becoming current in Chart A.
Hypothetical #6. Same facts, except with the LPR petitioner filing an I-130 for the child. On the date the F-2A priority date becomes current, the child is over 21 using his biological age but under 21 using his adjusted age. The petitioning father naturalized yesterday. The child is worried that he may have converted to the F-1 category since the petitioner is now a U.S. citizen. Can he opt out of conversion to F-1 and remain in the F-2A category? Or did he convert to immediate relative since he was under 21 using his adjusted age when the petitioner naturalized?
Answer. The child in that case would convert from the F-2A category to the F-1 category, since it is the child’s biological age that would control, not his adjusted age. The child would not be considered an immediate relative, since he is over 21 using his biological age on the date the petitioner naturalized. While CSPA §6 allows children in the F-2B category to opt out of conversion to first preference, there is no equivalent opt-out provision for children in the F-2A category. The Board of Immigration Appeals has held that the CSPA does not allow the children in this situation to opt out of automatic conversion to the F-1 category, which is backlogged much farther than the F-2A category. Matter of Zamora-Molina, 25 I&N Dec. 2006 (BIA 2011).
Hypothetical #7. Different facts: a derivative child in the F-3 or F-4 category is under 21 using his biological age when the principal’s priority date becomes current using Chart B. The NVC issues a fee bill; the child pays it and submits the DS-260. However, the priority date becomes current using Chart A, the child has aged out using both his biological and his adjusted age.
Answer. The child in that situation has lost derivative status and cannot proceed. He has also lost his filing fee. When the principal beneficiary immigrates and files a separate I-130 petition in his behalf, he would be classified in the F-2B category and would not be able to retain his priority date. Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 573 U.S. __ (2014). In the event he is still alive and unmarried when the F-2B category becomes current, he would need to pay another immigrant visa fee.
Adjustment of Status
Hypothetical #8. An LPR father filed an I-130 petition for his unmarried son on Feb.15, 2015, in the F-2A category. The child was born on Oct. 1, 1995. The petition was approved on Jan.1, 1996, or three months later. The priority date became current on Oct. 1, 2015, using Chart B, and the child promptly filed for adjustment of status. The child’s biological age was 20 at that time. The child was granted employment authorization. The priority date became current in Chart A on Dec. 1, 2016. The child’s biological age was over 21, but his adjusted age was still under 21, since he was allowed to subtract three months from his age.
Answer. Every month USCIS will decide whether to allow the filing of the adjustment of status using Chart B. For October 2015, USCIS allowed filing using Chart B. However, the agency will not schedule an interview until the applicant’s priority date becomes current using Chart A. In this case, the applicant was still under 21 using his adjusted age. He had already satisfied the one-year filing requirement, so he is locked into the F-2A category.
Hypothetical #9. Same facts except the child was born on August 1, 1995.
Answer. The child’s biological age was under 21 when the priority date became current using Chart B, so he was allowed to file for adjustment of status. The National Benefits Center will hold the adjustment application until the priority date is current in Chart A and then it will send the case to the local district office for an interview. When the priority date became current using Chart A, the child’s adjusted age was over 21 and he had converted to the F-2B category. The NBC will continue to hold the case until the child is current in the F-2B category, which will take years and perhaps decades, depending on his nationality. During that time, however, the adjustment of status case will remain pending and the applicant is entitled to continue receiving renewals of employment authorization and eligibility to receive advance parole. Since there is no required updating or reporting requirement, the applicant could marry or the petitioner could die and the application would still be considered pending.
Hypothetical #10. Same facts, with the child born on August 1, 1995, except the petition was filed by a U.S. citizen for his sibling in the F-4 category. At the time the priority date became current using Chart B, the child was under 21 using his biological age. When the priority date became current using Chart A, the child had aged out using his adjusted age.
Answer. The child lost derivative status and the application would not be forwarded to the district office. The child would no longer be eligible for employment authorization renewals or eligibility to apply for advance parole. He would stop receiving employment authorization renewals when the priority date became current using Chart A and it was determined that he had aged. And he would have lost the adjustment of status filing fee.