USCIS Memorandum: Late filings under CSPA may be excused

The Child Status Protection Act (CSPA) is back in the news. On June 6, 2014, a USCIS policy memorandum was released, expanding the definition for how a CSPA beneficiary could have “sought to acquire” immigration status. Potentially, the policy memorandum will benefit adult children who were at one time available for protection under CSPA, but they (or their parents) did not timely file for the benefit and lost their ability to benefit from the Act.

CSPA provides for a formula wherein qualifying beneficiaries are still considered to be children (under 21 years of age) for immigration purposes, despite having actually turned 21 years of age. To qualify for CSPA, the law holds that the beneficiary must “seek to acquire” their immigration status within one year of the applicable priority date becoming current. The definition of “seeking to acquire” has generally been defined by USCIS and the Department of State as submitting an application for Adjustment of Status (I-485), an application for an Immigrant Visa (completed DS-230 Part 1 or DS-260), or an Application for Action on an Approved Application or Petition (Form I-824).  As long as one of these applications has been filed within one year of visa availability, the “sought to acquire” requirement has been satisfied.

Overall USCIS and the State Department have narrowly defined the “seek to acquire” requirement. In 2012, the Board of Immigration Appeals (Board) chimed in by issuing a published decision, essentially affirming the agencies’ strict requirements and creating a limited exception. In Matter of O. Vasquez, the Board held that an “extraordinary circumstances” exception can be applied in situations where the child has not met one of the three designated application procedures.

The June 6, 2014 Policy Memorandum references Matter of O. Vasquez, and officially implements and provides guidance into the “extraordinary circumstances” exception. If an individual comes under the protection of the exception, USCIS may approve a CSPA request, even if the beneficiary fails to take appropriate action on the case within the standard time limits.

The USCIS memorandum explains the criteria by which an immigration adjudicator can use discretion in excusing a filing outside of one year. According to the memorandum, officers are to make extraordinary circumstances determinations on a case-by-case basis, under a totality of the circumstances. The adjudicator should exercise discretion in favor of the beneficiary if:

(1) the circumstances were not created by the individual’s own action or inaction;

(2) the circumstances were directly related to the failure to act within the one-year period; and

(3) the delay was reasonable under the circumstances.

USCIS has not released a complete list of potential scenarios which would justify CSPA protection for a child who seeks to acquire residency beyond one year. The agency has, however, provided some examples of circumstances which might warrant a favorable exercise of discretion and a finding that CSPA protection is merited based on extraordinary circumstances.  These circumstances include:

• Legal disability, such as mental impairment

• Serious illness or mental / physical disability during the one-year period

• Ineffective assistance of counsel

• Timely filing rejected by the USCIS followed by a prompt, corrected filing

• Death or serious illness or incapacity of legal representative or immediate family member

The Memo is also retroactive in its effect, holding that cases denied solely due to late a filing after June 8, 2012, can be reopened.

CSPA provisions keep many a lawyer and immigration officer up at night. USCIS’ recent memorandum is yet another illustration of some of these complexities. Time is of the essence, as there is always the possibility of a child to age out of eligibility for immigration benefits. Individuals who believe they or their children may benefit from the recent “extraordinary exceptions” memorandum would be well-advised to seek advice from qualified immigration counsel without delay.

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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience.  His offices are located in Irvine, California.