The Child Status Protection Act (CSPA) allows an applicant for immigration benefit under a preference category, either as a direct or a derivative beneficiary, to retain his classification as a “child” even if he has reached the age of 21 by means of the following formula.
First, determine the child’s age on the date his visa number becomes available. The “date a visa number becomes available” is the later of either of these two dates: (1) the first day of the month of the visa bulletin when the child’s priority became current; or (2) the date when the petition was approved if a visa number was already available on the approval date of the petition.
Second, subtract the number of days that a petition was pending. The “number of days that a petition is pending” is the number of days between the date the petition is properly filed and the date the petition is approved. The age that we get after subtracting the number of days that a petition is pending is the CSPA age of the child. Third, if the child’s CSPA age is under 21, the child will maintain “child” status if he sought to acquire LPR status within one year of the visa number availability.
In this article, we will discuss the “sought to acquire” aspect of this CSPA formula. Under current policies, a child may meet the “sought to acquire” requirement of CSPA by: (1) filing a Form I-485 application for adjustment of status; (2) submitting a Form DS-230 application for immigrant visa registration; or (3) filing a Form I-824 application for action on an approved application or petition.
It must be emphasized that, with respect to immigration benefit requests with USCIS, a child is considered to have “sought to acquire” LPR status by “filing” either a Form I-485 or Form I-824. However, with respect to immigration benefit requests with the Department of State (DOS), the child satisfies the “sought to acquire” requirement by “submitting” a Form DS-230 because this is the start of the visa application process.
In Matter of Vasquez, 25 I&N Dec. 817 (BIA 2012), the Board of Immigration Appeals (BIA) held that, in the context of an immigration benefit application with USCIS, a child may comply with the “sought to acquire” requirement by other actions that fall short of filing a Form I-485. The BIA identified two situations that fall short of filing but are sufficient to meet the “sought to acquire” requirement: (1) if the child establishes that he submitted an application with USCIS in the manner that the application provides but it was rejected for a procedural or technical reason, such as, for example, the absence of a signature; or (2) if the child shows that there are extraordinary circumstances, particularly those where the failure to timely file was due to circumstances beyond the child’s control.
As an example of extraordinary circumstances, the BIA stated that the child may show that he paid an attorney to assist in filing a Form I-485 and completed the application prior to the one year deadline but the attorney failed to file the application on time. However, the BIA cautioned that actions that do not approximate the filing of an application are insufficient to meet the CSPA’s “sought to acquire” requirement. Thus, contacting an attorney for legal advice without actually filing an application does not meet the “sought to acquire” requirement.
In Matter of Vasquez, the BIA identified the broad outlines of exceptions to filing, such as extraordinary circumstances, which are sufficient to satisfy the “sought to acquire” requirement. In an Interim Memorandum, dated June 6, 2014, USCIS provides detailed guidance on what these extraordinary circumstances might be. This guidance was drawn from existing regulations which define extraordinary circumstances that excuse the late filing of an asylum application.
Under this June 6, 2014 Interim Memorandum, a child may establish extraordinary circumstances by demonstrating that: (1) he did not create the circumstances through his own action or inaction; (2) the circumstances were directly related to his failure to file his application within the required one year period; and (3) the delay was reasonable under the circumstances.
The Interim Memorandum also provides the following examples of extraordinary circumstances, such as: (1) serious illness or mental or physical disability during the one year period; (2) legal disability such as mental impairment during the one year period; (3) ineffective assistance of counsel; (4) a timely application that was rejected and returned to the applicant for corrections but the deficiency was corrected and the application was re-filed within a reasonable period afterwards; and (5) death, serious illness or incapacity of the child’s legal representative or the child’s immediate family.
When USCIS determines whether a circumstance is extraordinary, it weighs the totality of the circumstances and exercises its discretion. Commonplace circumstances such as financial difficulty, minor medical conditions, and circumstances within the alien’s control are not considered extraordinary.
