USCIS Policy Memorandum on CSPA Creates an Exception for Late "Sought to Acquire" Filing
The Child Status Protection Act (CSPA) remains relevant in immigration law. On June 6, 2014, a USCIS policy memorandum was published, and it broadened the definition for how a CSPA beneficiary could have “sought to acquire” immigration status. Consequently, this could benefit certain adult children who were at one time available for protection under CSPA, but may have not timely filed for the benefit and outright disqualified from benefiting from the Act. The memorandum is available to read here.
Historically, CSPA provides for a formula wherein certain beneficiaries are still considered to be children (under 21 years of age) for immigration purposes, despite having actually turned 21 years of age. Notably, to qualify for CSPA, the beneficiary must “seek to acquire” their immigration status within one year of their priority date becoming current. Prior to the memorandum, the definition of “seeking to acquire” had been defined by USCIS and the Department of State as submitting an application for an Immigrant Visa (completed DS-230 Part 1 or DS-260), an application for Adjustment of Status (I-485), or an Application for Action on an Approved Application or Petition (Form I-824). This “sought to acquire” requirement was met as long as one of these applications had been filed within one year of visa availability.
Although USCIS and the State Department had narrowly defined the “seek to acquire” requirement previously, the Board of Immigration Appeals (Board) in Matter of O. Vasquez, held that an “extraordinary circumstances” exception can be applied in situations where the child has not met one of the three designated application procedures. Moreover, the USCIS Policy Memorandum references Matter of O. Vasquez, and officially provides guidance into the “extraordinary circumstances” exception. As a result, if an individual meets under the exception, USCIS may approve a CSPA request, even if they failed to take appropriate action on the case within the standard time limits.
The USCIS memorandum describes the criteria by which an immigration adjudicator can use discretion in excusing the one-year deadline by which to have “sought to acquire”. In essence, officers are to make extraordinary circumstances determinations on a case-by-case basis, under a totality of the circumstances. The memorandum reads that an 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 delay was reasonable under the circumstances; and
3. the circumstances were directly related to the failure to act within the one-year period.
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:
(a) Legal disability, such as mental impairment
(b) Serious illness or mental / physical disability during the one-year period
(c) Ineffective assistance of counsel
(d) Timely filing rejected by the USCIS followed by a prompt, corrected filing
(e) Death or serious illness or incapacity of legal representative or immediate family member
NOTE: 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 has been a highly litigated issued in immigration history, and the delays in immigrating due to the lack of such protection has caused families great anguish. Immigration law is complex and constantly evolving through case law and USCIS policy. Potential beneficiaries/applicants must act quick to avoid “aging out” from immigration benefits. Anyone who believes they or their children (or grandchildren) may benefit from the recent USCIS memorandum covering the “extraordinary exceptions” should seek advice from a qualified immigration attorney and not delay in getting answers.
Mario Zapata is an immigration attorney practicing out of Orange County, CA and represents clients nationwide.