On June 15, 2009, the USCIS Office of Communications issued a Q&A, which described the Office’s new policies regarding the applicability of the Child Status Protect Act (CSPA).
The CSPA, enacted on August 6, 2002, protects individuals who are classified as children for immigration purposes (i.e. unmarried persons under the age of 21) from “aging out” due to agency and judicial delays in the visa approval process. Under the Act, a child who is the immediate relative of a U.S. citizen will remain a child if her visa petition is filed before she turns 21. For children who are relatives of permanent residents or derivatives of U.S. citizens, the CSPA allows the petitioner to subtract the time during which her visa petition was pending from her age at the time the visa became available, so that she "is not penalized for the time in which USCIS did not adjudicate her claim."
Originally, the CSPA applied only to petitioners who had “aged out” on or after August 6, 2002, the date of the CSPA’s enactment. However, in an April 30, 2008, memo issued by the USCIS, the Office extended the Act's applicability to all those whose visa petitions were filed on or after August 2, 2002, unless there was a "final determination" on the petition prior to this date. Although the April 2008 memo did not specify when a determination would be considered "final," the Ninth Circuit has held that a determination is final only when there is no possibility for the petitioner to appeal.
The April 2008 guidance memo also limited the CSPA's coverage to only those individuals who "seek to acquire" permanent residence within one year of their visa availability. To satisfy this requirement, petitioners must file one of the following three forms: a Form I-824 (Application for Action on an Approved Application or Petition), a Form I-485 (Application to Register Permanent Resident or Adjust Status), or a Form DS-230 (Application for a Department of State Immigrant Visa and Alien Registration). If a petitioner fails to file one of these forms within the year of her visa becoming available, she will not be covered by the CSPA, unless she can show: (1) that her visa petition was approved before August 6, 2002, (2) that she had not received a final determination before August 2, 2002, and (3) that her visa became available on or after August 7, 2001.
The new USCIS policy regarding CSPA coverage will affect those individuals whose visa applications were denied because they had already turned 21 by the time of the Act’s enactment. Under the new guidance, these individuals can file motions to reopen their cases with the offices that denied their applications, and can do so for free if they show that they would have qualified as children under the CSPA and that their applications were denied solely because they “aged out” prior to the Act’s passage. There is no deadline for filing this motion.