Update on CSPA’s One-Year Filing Requirement
The Department of State (DOS) recently confirmed that it will accept payment of the immigrant visa fee as satisfying the one-year filing requirement under the Child Status Protection Act. In order for a child in the preference category to retain the “under 21” age status, and thus remain in the F-2A or derivative category, he or she must has “sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability.” INA § 203(h)(1)(A). The USCIS and DOS have consistently held that this could only be satisfied by filing one of three forms: an I-485, I-864, or DS-230 (now DS-260). This interpretation was upheld by the BIA, although a small exception was allowed for those who could show “extraordinary circumstances.” The USCIS seemed to allow for a change in policy by the DOS in a June 2014 agency memo defining and explaining the extraordinary circumstances exception. The agency stated that the one-year filing requirement might be satisfied by simply paying the visa application fee rather than filing the DS-260. The DOS has confirmed that new policy at a Regional Economic Advocacy Conference held on April 13, 2015.