ELIGIBILITY for benefits under Section 3 of the Child Status Protection Act (CSPA) is based on a mathematical formula, where you subtract from the child’s age the length of time it took USCIS to process and approve the petition. You take the date the petition is filed, and the date it was approved. How long did it take USCIS to approve the petition? Three months? Six months? One year?
Next, you wait (sometimes many years) until the priority date is current (or visa is available). How old is the “child” when the priority date finally becomes current? You subtract from the child’s age the length of time it took the USCIS to process and approve the petition. If the child’s age is calculated to still be under 21, your child could possibly qualify under the CSPA. However, parents sometimes do things that could mess up their child’s CSPA eligibility:
• Don’t ask USCIS to “expedite” the approval of the petition! Under the mathematical calculation, the longer USCIS takes to approve a petition, the more time you can subtract from the child’s age when the priority date becomes current. The faster the USCIS approves a petition, the less time you can subtract from the child’s age. If USCIS took three months to approve the petition, you can only subtract three months from the child’s age. If USCIS took two years to approve the petition, you can subtract two years from the child’s age. Therefore it is always better, for CSPA purposes, for the USCIS to take longer to approve the petition.
• Your child must “seek to acquire a visa” within one year of when the priority date is current. Not only does a child’s age have to be under 21, but the child must also “seek to acquire” a visa within one year of availability. This is done by filing certain forms with either USCIS or NVC. In other words, CSPA eligibility is a two–step process. There have been many cases where the child’s age was calculated to be under 21 years of age, but the parents messed up by failing to satisfy the second step of “seeking to acquire” the visa for the child within one year of visa availability.
• Don’t naturalize after your child’s 21st birthday if he or she is CSPA eligible. If your child’s age is calculated to be under 21 and the child seeks to acquire a visa within one year, the child’s age is “locked in” as a minor. However, if the parent thereafter naturalizes after the child’s 21st birthday, the child’s CSPA eligibility is destroyed. I know of several cases where the child qualified under the CSPA: the age was locked in, and the only thing left was the visa interview. But the parent went out and naturalized, which destroyed CSPA eligibility. There have been published court decisions specifically holding that if the parent naturalizes after the child’s 21st birthday, the child is no longer eligible under the CSPA.
My point is that the CSPA can sometimes be a confusing and complex law. What may seem to make sense (such as rushing the approval of a petition) can actually be harmful to a case. Before you act as your own attorney, giving yourself advice, and making up your own laws and rules, you should, instead, consult with an attorney to make sure you’re doing it correctly and are properly strategizing the case.
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Michael J. Gurfinkel has been an attorney for over 35 years and 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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