Background

Under the Immigration Nationality Act (INA), a person is defined as a “child” when he/she is unmarried and under the age of 21. The Child Status Protection Act (CSPA) allows principal applicants and their derivative beneficiaries to remain eligible for immigration benefits when the beneficiary has aged-out by turning 21. The CSPA was enacted to protect the applicants who aged out due to the delay in the adjudication of the petition or application.

Additionally, in order for an applicant to be protected under the CSPA, the applicant must “seek to acquire” the status of an alien lawfully admitted for permanent residence within one year of the visa availability [see INA Section 203(h)(1)(A)]. Under previous USCIS Policy, there are three ways to meet the “seek to acquire” requirement:

  1. Filing Form I-485, Application to Register Permanent Residence or Adjust Status;
  2. Submitting Form DS-230, Application for Immigrant Visa and Alien Registration; or
  3. Having Form I-824, Application for Action on an Approved Application or Petition, filed on the Alien’s behalf.

Previously, the “seek to acquire” requirement did not allow officers to use discretion in considering late filings. In 2012, the Board of Immigration Appeals (BIA) issued the decision of Matter of O. Vasquez which serves as the basis for this USCIS Policy Memorandum. Specifically, the BIA found that “if an applicant could show with persuasive evidence that his/her application was rejected for a technical or procedural reason, or that he/she filed late due to extraordinary circumstances beyond his/her control”, then the adjudicating officer may exercise discretion in excusing the late filing for purposes of meeting the “seek to acquire” requirement.

Standard for “Extraordinary Circumstances” in Revised Adjudicator’s Field Manual (AFM)

The BIA did not provide specific criteria for establishing extraordinary circumstances for failure to meet the “seek to acquire” requirement. However, the BIA did note that the officer’s determination of extraordinary circumstance must be made on a case-by-case basis and officers should consider the totality of the circumstances. Accordingly, the AFM was revised to reflect the new policy and guidance.

Here are some highlights from the revised AFM Chapter 21.2(e)(1)(ii)(E)(II):

  1. In order to establish extraordinary circumstances, the alien must demonstrate that:
    1. The circumstances were not created by the alien through his own action or inaction;
    2. Those circumstances were directly related to the alien’s failure to file the application within the one year period; and
    3. The delay was reasonable under the circumstances.

This means that the alien’s extraordinary circumstance was not caused by the alien himself and that those circumstances was the reason why there was a reasonable delay in him filing to seek to acquire lawful permanent resident status.

  1. Examples of extraordinary circumstances that may warrant a favorable exercise of discretion may include:
    1. Serious illness or mental or physical disability during the one year period;
    2. Legal disability (ie. where the applicant is suffering from a mental impairment) during the one year period;
    3. Ineffective assistance of counsel;
    4. A timely application was rejected by USCIS, returned to the applicant, and the application was re-filed within a reasonable period afterwards;
    5. Death or serious illness of an alien’s legal representative or member of the alien’s intermediate family.
  2. Examples of commonplace circumstances that are not considered extraordinary circumstances
    1. Financial difficulty
    2. Minor medical conditions
    3. Circumstances within the alien’s control (ie. seeking counsel to begin preparation of the application package)

Conclusion

Ultimately, the BIA decision and USCIS Policy Memorandum allows adjudicating officers to weigh the totality of the circumstances and the reasonableness of the delay in considering a claim of extraordinary circumstances. If the adjudicating officer believes that extraordinary circumstances prevented the applicant from failing to meet the “seek to acquire” requirement, then the officer may exercise discretion in allowing the applicant to remain eligible in receiving the immigration benefits permitted under the INA.

For EB-5 investors, this means that if the applicant is unable to file an I-485 or DS-230 within one year of the visa becoming available due to extraordinary circumstances, then they may still be able to obtain the benefits of the CSPA (and still be considered a “child”) – as long as the officer finds that those circumstances truly are extraordinary.