By Charles Wheeler
On June 6, 2014, the USCIS issued a formal policy memorandum on the issue of what might constitute “extraordinary circumstances” for failing to satisfy the one-year filing requirement under the Child Status Protection Act. Pursuant to the CSPA, children in the F-2A category who are under 21 using their adjusted age on the date the priority date becomes current will be able to stay in that category, regardless of their biological age or how long it takes them to immigrate. The same is true for derivative children in the family- and employment-based categories. Their adjusted age is arrived at by subtracting all of the time between the filing and adjudicating of the underlying petition. The only requirement is that the F-2A or derivative child must have sought to acquire LPR status within one year of the priority date becoming current.
The USCIS and the Department of State have defined the term “sought to acquire” to mean the filing of one of three applications: an I-485, an I-824, or a DS-230 (which currently is the DS-260). Advocates challenged this narrow interpretation, arguing that the term “sought to acquire” is broader than “filed.” The BIA addressed this issue in Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), and essentially agreed with the government’s interpretation. But the Board did allow for other situations where the applicant could demonstrate “extraordinary circumstances” that prevented the filing of the application within the one-year window. The Board did not clarify or elaborate on what circumstances might satisfy this exception.
The USCIS memo provides guidance on how adjudicators should evaluate the evidence and exercise discretion in this area. The agency looked at how the term “extraordinary circumstances” is defined and applied in the asylum context, which has a similar one-year filing requirement. 8 CFR § 208.4(a)(5). The memo, which amended Adjudicators Field Manual chapter 21.2(e), states the general rule that the child must demonstrate: (1) that the circumstances were not created by him or her through his/her actions; (2) the circumstances were directly related to the child’s failure to make a timely filing; and (3) the delay was reasonable under the circumstances.
The memo then lists examples of “extraordinary circumstances” during the one-year period that may warrant a favorable exercise of discretion: serious illness or mental or physical disability; legal disability (mental impairment); ineffective assistance of counsel; timely filing that was rejected by the USCIS, corrected, and returned within reasonable time; and death or serious illness/incapacity of the applicant’s representative or a member of the applicant’s immediate family.
If the applicant is alleging ineffective assistance of counsel, he or she must file an affidavit setting forth the agreement between the parties governing the actions the representative would take. The representative must be provided an opportunity to respond to the allegations. And the applicant must indicate whether a formal complaint has been filed with appropriate disciplinary authorities.
The memo stresses that the adjudicator should weigh all of the factors, particularly the connection between the adverse circumstances and the failure to timely apply. The “circumstances must truly be extraordinary and beyond the alien’s control.”