By Cyrus D. Mehta
Many cases involving complex
interpretations of the Child Status Protection Act (CSPA) occur while the
applicant is applying for an immigrant visa at an overseas consular post. The
CSPA protects a child who may turn 21 or more from “aging out,” and thus being
eligible for permanent residence as a derivative, when his or her parent is
issued permanent residence. Often times,
while there is room for interpretations under the CSPA, the consular officer
may take a restrictive view of a CSPA provision and refuse the visa. There is
no appeal process to review a consular officer’s decision at an overseas post,
and the refusal may seem to be the end of the road and separation from the
“aged out” child from the parent. Fortunately, despite the absence of an appeal
process, one can seek an advisory opinion on a purely legal issue with the
State Department’s Visa Office in Washington DC via legalnet@state.gov, and a
denial under the CSPA mostly involves a legal issue rather than a factual
issue. By contrast, the denial of a tourist visa application is almost always
fact based, and under such circumstances, it may not be possible to seek an
advisory opinion from the Visa Office.
This author has
had success in overturning a consular official’s denial on at least two occasions
in the past. On both these occasions, the State Department’s Visa Office agreed
that the 45 days provided in section 421(2) of the USA Patriot Act can be
subtracted from the age of a child if the age subtraction formula under the
CSPA did not bring down the age of the child under 21 years. In other words,
the child can use the benefit of both the Patriot Act and the CSPA to lower the
age of a child below 21 years. Although this author had
previously advocated that there was nothing in the CSPA preventing the use of
the 45 days from the Patriot Act in addition to
the age subtraction formula provided in the CSPA, this is now no longer an issue as it
has been clearly acknowledged in 9
FAM 42.42 N12.4(e.) and 9 FAM 42.42 N12.8(b.).
Our recent success, which we
report here for the benefit of others, was regarding the interpretation of
“sought to acquire the status of permanent residency” within one year of visa
availability. At issue is whether the payment of the visa processing fees with
the National Visa Center within the one year period constituted “sought to
acquire” permanent residency within the one year period. The actual application
for the immigrant visa, DS 230 Part I or II, had not been filed within one
year. The applicant was unrepresented at that time and was not aware of the precise
requirement to apply for permanent residence within one year of visa
availability.
As a background, INA §203(h), introduced by Section 3 of the
CSPA, provides the formula for determining the age of a derivative child in a
preference petition even if the child is older than 21 years. To qualify as a
child under INA §101(b)(1), one must be below the age of 21 and unmarried. The
age is determined by taking the age of the alien on the date that a visa first
became available (i.e. the date on which the priority date became current and
the petition was approved, whichever came later) and subtracting the time it
took to adjudicate the petition (time from petition filing to petition
approval). Based on this formula, if the child’s age falls below 21, the child
is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the
alien to have “sought to acquire” LPR status within one year of visa
availability.
The CSPA thus artificially
freezes the age of a child below 21 years of age so that he or she is not
deprived of permanent residency when the parent is granted the same status. One
of the requirements, however, is for the child to seek permanent residency
within one year of visa availability. Often times, a CSPA protected child falls
through the cracks by failing to meet the prevailing rigid filing requirements
within the one-year deadline.
Both the Department of Home
Security (DHS) and the Department of State (DOS) have interpreted the phrase
“sought to acquire” narrowly, although
unpublished decisions of the Board of Immigration Appeals have taken a broader
view. DHS limits this phrase to filing an I-485 application for adjustment
of status. See “Revised Guidance for CSPA” (April 30, 2008). The DOS too has interpreted “sought to
acquire” narrowly and indicated that in consular processing cases, the date
that a child seeks to acquire LPR status is the date Form DS 230, Part I, is
submitted by the child, or by the child’s parent on the child’s behalf to the
National Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January
17, 2003), See “Child
Status Protection Act: ALDAC 2” (January 17, 2003). If the principal
beneficiary parent adjusts status in the US, and the child will be applying for
the visa overseas, the DOS requires the principal to file Form I-824 to
initiate the child’s follow-to-join application. The DOS has also indicated
that since Form I-824 is not the only way to initiate the process, posts may
seek advisory opinions in cases in which some other “concrete” step has been
taken.
The US consular post we were
dealing with insisted that the applicant did not seek to acquire permanent
residence within one year because the applicant only paid the visa processing
fees with the National Visa Center, but did not file the DS 230, Part 1, within
one year of visa availability. The payment of the visa processing fee was not
sufficient to constitute “sought to acquire” permanent residence within the one
year time frame.
Upon receiving official confirmation of the refusal at the
US consular post, we sought an advisory opinion from the Visa Office through legalnet@state.gov. Although we
acknowledge that they are not binding on the State Department, we pointed to recent
unpublished decisions of the Board of Immigration Appeals (BIA), which have
interpreted the “sought to acquire” term more broadly, that should still be
persuasive. For example, In In re Murillo, 2010 WL 5888675 (BIA Oct.
6, 2010) the BIA reaffirmed its broadened “sought to acquire” to include
substantial steps towards the filing of the relevant application, although
these steps may fall short of an actual filing of an application. In this case,
the applicant claiming protection under the CSPA hired an attorney to prepare
an I-485 adjustment application within the one year time frame, but filed it
within a reasonable time thereafter. This decision follows closely on the heels
of other unpublished Board decisions that have applied the same “sought to
acquire” standard. See
In re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the child
beneficiary “sought to acquire” LPR status within one year of visa approval
because her parents hired an attorney to start preparing the adjustment
application within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759
(BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-year
period when, during this time, he info rmed
both the Immigration Judge and the Board that he wished to file an adjustment
application, even though the application was not actually filed within one
year).
It is in the
same spirit as the unpublished BIA decisions, and consistent with INA
§203(h)(1)(A), we requested that the
Visa Office advise the Consul to consider the fact that the filing fee paid
within the one year time frame constituted a very concrete step towards seeking
permanent residency. Indeed, payment of the fees constituted a much more
credible step towards seeking permanent
residency than making an info rmal request
to the NVC or contacting an attorney, which are the facts supporting the
aforementioned BIA decisions. We also
pointed out to Visa Office, as we did with the consulate unsuccessfully, that
the Foreign Affairs Manual (FAM) at 9 FAM 42.42 N12.9 recognizes the complexity
of the CSPA, and advises that a Consul may seek an advisory opinion in the
following instance:
If
the officer encounters a case involving a derivative following to join a
legally admitted immigrant, or adjusted principal, who has not filed Form
I-824, Application for Action on an Approved Application of Petition, on the
derivative’s behalf within the required time frame, but the consular officer
determined that the derivative has taken some other concrete step to obtain LPR
status within the required one year time frame.
We therefore
asked that the Visa Office provide such an advisory opinion under the authority
laid out in the FAM, and advise the consular officer that other concrete steps
taken to obtain LPR status, such as the payment of immigrant visa fees that
occurred here, may be considered.
In less than
two weeks from seeking the advisory opinion just prior to the New Year (2012),
we received the following communication from the Visa Office:
Thank you for your inquiry to LegalNet.
Since the derivative applicants submitted their IV fee within one year of visa
availability, the Consular office will consider CSPA's sought to acquire
requirement satisfied. The visa unit in [redacted] will contact the
applicants to resume processing.
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ReplyDeleteSuperPole
My underaged son was denied due to a hunch that he might have studied in the US illegally for a period of time however he did not and no supporting evidence has been presented by the post. We have supplied ample evidence that he was living in another country including a Migratory Certificate issued by the Federal Police in our country which corroborates our evidence. Which organ can I appeal to at this point as it seems FAM states that there must be some sort of supporting evidence in a case like this. BIA has denied us because hardship was not established and we currently have a case with Legal Net.
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