World Journal Weekly Q & A - July 22, 2007Q & A 1. Is the niece eligible for CSPA protection when she was only 10 at the time the case began? Current CSPA Interpretation.Cai Reader asks: When my husband and I put in the immigration papers for my brother, his wife and their daughter, their daughter was only ten years old. Now in few months, they should be able to come. Can their daughter, who already turned 21, come with them to the U.S.? If not, what should I do? Dear reader: The current interpretation of U.S.C.I.S. and U.S. Department State is fairly restrictive as to who qualifies under the CSPA (Child Status Protection Act). The agencies will give a credit for age during the period of time that the I-130 petition was pending with legacy INS. In addition, they may acknowledge that the child is given another 45 days under the U.S. Patriot Act. If the credits for the period of the I-130 pendency and 45 days do not make the child less than 21 when the priority date clears, the agencies' position is that the child is not protected under the CSPA. You would have to do those calculations to determine your niece's eligibility under agency standards. I note that the CSPA is evolving legislation as regulations have not yet been written, but the Board of Immigration Appeals and federal courts have been liberal in their interpretation in the meantime. The courts and Board have been fairly unanimous in deciding that a person whose age can be determined at one point to be less than 21 when current for immigrant visa issuance should not be disenfranchised by turning 21 before the enactment of the CSPA on August 6, 2002. They have held that a denial by legacy INS is not a final denial as it could be appealed in one case to the immigration judge, in another case to the Board, and in the third case to the circuit court. In fact, one district court case ruled that CSPA coverage was given to persons who once qualified through age but had never filed an adjustment of status or immigrant visa application. In other CSPA areas, a district court held the requirement that an applicant file for adjustment of status or an immigrant visa within one year of the priority date becoming current inapplicable where the child had been included on the visa petition as a dependent and filed the I-485 application while under the age of 21 but over one year after the priority date became current; and the Board in an unpublished decision held that a person whose age was counted as over 21 is entitled to the parent's original priority date. However, I note that here also the U.S.C.I.S. and Department of State are opposing the granting of benefits. What further developments will occur with CSPA cases remain to be seen, but no one is expecting an over generous set of regulations by U.S.C.I.S. if and when the agency ever decides to publish them.
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Copyright © 2003-2007 Alan Lee,
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