AN alien who seeks to be classified as a “child” or as a derivative beneficiary under the Immigration and Nationality Act (INA) and who is under 21 years of age as determined under the Child Status Protection Act (CSPA) is required to seek lawful permanent residence within one (1) year of the visa becoming available so he can avail of the benefit of the specified age-out protection under the CSPA.
What happens if the alien is unable to seek lawful permanent residence within that one year period? In a policy memorandum dated 4/15/2015 entitled “Guidance on Evaluating Claims of “Extraordinary Circumstances” For Late Filings When the Applicant Must Have Sought to Acquire Lawful Permanent Residence within 1 Year of Visa Availability Pursuant to the Child Status Act”, the USCIS stated that an individual may be able to meet the “sought to acquire” one-year requirement in the event he fails to do so provided he can prove “extraordinary circumstances” prevented him from doing so.
For extraordinary circumstances to be considered for purposes of meeting the “sought to acquire” requirement, the alien must be able to show that:
• “The circumstances were not created by the individual’s own action or inaction,
• “The circumstances were directly related to the failure to act within the 1-year period, and
• “The delay was reasonable under the circumstances”.
Examples of “extraordinary circumstances” are: (1) serious illness or mental or physical disability during the one-year period; (2) legal disability such as instances where the applicant is suffering from a mental impairment during the one-year period, (3) ineffective assistance of counsel, (4) death or serious illness or incapacity of the alien’s legal representative or a member of the alien’s immediate family.
It should also be noted that an alien can show that he “sought to acquire” permanent residency by the following:
• “Filing Form I-485, Application to Register Permanent Residence or Adjust Status,
• “Submitting an Application for Immigrant Visa and Alien Registration.” In applications for consular processing, payment of the visa application fees or filing the affidavit of support would suffice; and
• “Having Form I-824, Application for Action on an Approved or Petition, filed on the Derivative Beneficiary alien’s behalf when the principal applicant is present in the United States.”
If you are contemplating of filing any immigrant or non-immigration application, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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