The Board of Immigration Appeals (BIA) has ruled that a parent who naturalized after his or her child’s 21st birthday destroyed that child’s eligibility for benefits under the Child Status Protection Act (CSPA). Therefore, if you believe that your child may be eligible for benefits under the CSPA, you should seek the advice of an attorney before taking the oath of citizenship.
By way of background, the CSPA allows certain children who “aged – out” (turned 21) to nevertheless be considered a “child” based on a mathematical formula. Once the child’s “mathematical age” is determined to be under 21, the age is “locked in” under Section 3 of the CSPA (as long as the child also “sought to acquire” a visa within one year).
In that BIA case, an immigrant mother filed a petition for her minor child in the F – 2A category. It took about 900 days for the USCIS to process and approve the petition. By the time the child’s priority date became current in the F –2A preference category, the child was already 23 years old. However, by subtracting the 900-day processing time, from the child’s actual age, the child’s “CSPA age” would have been deemed to be 20 years old. So, under the CSPA mathematical formula, the child was qualified for benefits under the CSPA.
However, after the child’s actual 21st birthday, and before the visa became available in the F – 2A category, the parent naturalized. Because the parent naturalized after the child’s 21st birthday, the USCIS concluded that the child was no longer eligible for benefits under the CSPA and denied adjustment of status. The child was placed in removal proceedings, the immigration judge ordered removal, and the case was appealed to the BIA, which upheld the child’s removal.
The child tried to argue that he was being penalized just because his parent had mistakenly naturalized. Had the parent remained an immigrant, all would have been well and good. The family also argued that because the child’s age was already calculated to be under 21 (based on the CSPA mathematical formula), the parent effectively naturalized before the child’s 21st birthday under the CSPA.
The BIA rejected all of these arguments. It stated that a child’s biological age on the date of his or her parent’s naturalization controls, not the child’s “adjusted age” based on the CSPA mathematical computation. Therefore, if this immigrant parent had filed a petition while the child was under 21, and also naturalized before the child’s actual\biological 21st birthday, then naturalization would help. However, this parent naturalized AFTER the child’s actual/biological 21st birthday. Therefore, the child was not eligible for benefits under the CSPA. (This ruling would also apply to children who could have been eligible under the CSPA as derivative beneficiaries of their parent’s employment or family based petitions, as well as F-2A petitions. The parent’s naturalization could destroy their CSPA eligibility.)
Many people have the attitude that they will “act first and ask later.” They will file petitions or applications, take the oath of citizenship, or take other actions with respect to their family’s immigration situation, and then go to an attorney to ask if what they did was helpful. However, sometimes the damage is already done, and cannot be undone. How do you think this mother now feels, knowing that her naturalizing destroyed her child’s eligibility for a green card under the CSPA? Had she not naturalized, the child would have been eligible, but she went ahead and naturalized, messing up the child’s case and future. That’s why I advise to seek the advice of an attorney first, and then act.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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