Atty. Vanessa S. Barcelona

IMMIGRATION

December 2002

Recalculating Age for Purposes of Relief

(This article is the second of a three-part series on the newly enacted Child Status Protection Act of 2002)

Before you get too excited, this article is NOT about a new miracle potion to make you younger! Those of us who who wish to fight the Age War will still need to use such modern-day weapons as botox and anti-oxidants and laser guns, to name a few. We're talking about something a little bit more sedate here - the Child Status Protection Act (CSPA). This article, by the way, is the second in a three-part series on the newly enacted CSPA. Last month, specific attention was given to the ways in which family-based applications for lawful permanent residency are affected by CSPA. This month's focus will be the ways in which employment-based applications will be affected by the new law.

The CSPA became law on August 6, 2002. This is clearly an ameliorative piece of legislation, one whose underlying purpose is to promote the unification of families. It protects children who would otherwise "age-out" and lose the opportunity to obtain lawful permanent residency. Before CSPA, in the employment-based arena, the I-485 application of a derivative child of an employment-based applicant had to have their application approved before turning 21, or else they would no longer qualify as a "child" for immigration purposes, and their application would be denied. CSPA changed the way a "child" is defined by "recalculating" that child's age as follows: Determine the child's age at the time the visa number becomes available (usually the date the I-140 is approved); then, subtract from that age the amount of time the I-140 was pending. The difference will be the child's age for immigration purposes. If the resulting number is less than 21 years, then that child is still considered a "child" for immigration purposes and can still obtain lawful permanent residency as a derivative applicant on his/her parent's employment-based application for adjustment of status. Caveat: CSPA requires that the child must apply for lawful permanent residence within one year of the visa number becoming available (within 1 year of the I-140 approval in most cases) or else s/he loses the right to apply under CSPA.

As an example, let us take the case of Milagritos, an Accountant who entered the U.S. on an H-1B and whose labor certification was later approved. Her employer filed an I-140 with the Texas Service Center on her behalf on September 15, 2001 and it was approved on July 6, 2002. Upon approval, she filed an adjustment of status application, and separate applications for adjustment of status were filed by her husband and her 20-year-old daughter, Milly. Milly turned 21 in October, 2002, while the adjustment of status applications were still pending.










 

Under the old law, she "aged-out" and her application for adjustment will eventually be denied. Under the new law, however, her age is "frozen" as of the time the visa became available, i.e., when the I-140 was approved on July 6, 2002. At that time, Milly was 20 years and 9 months old. This age is further reduced by the amount of time the I-140 was pending - 10 months - and voila! Her "age" for immigration purposes is 19 years and 11 months. Based on this formula, Milly is still a child for immigration purposes and is able to adjust status with her parents.

The discussion above reflects the implementation of CSPA as it affects adjustment of status cases filed before the INS. For cases filed before the State Department (i.e., where an immigrant visa will be sought at the Embassy abroad), the State Department has recently conceded that its computer system currently is not set up to identify and process beneficiaries under CSPA. In other words, their computer system at this time will automatically classify a minor child as an adult son or daughter upon that child's 21st birthday. For employment-based immigrants, this means that their minor children who turn 21 before the interview date will automatically be treated as adults and will not be considered for derivative immigrant visa issuance. However, pursuant to CSPA, consular posts have been instructed to "manually issue by typewriter any case that might qualify under the Child Status Protection Act". Procedures have been put in place for the issuance of visas based on these instructions.

Given the above, it is imperative for the employment-based applicant to ensure the proper identification of family members who qualify for benefits under CSPA. This is crucial, as the CSPA will only apply where there is no final determination on the application for a visa. Would-be beneficiaries under CSPA who are unaware of the changes in the law run the risk of not being properly identified by the State Department, and once their immigrant visa applications are approved, their child(ren) may lose the right forever to apply for an immigrant visa as a derivative child under the CSPA.
_______________

This article reflects the legal opinions of the author. It is not meant as legal advise nor should it be construed as such. To obtain legal advise on your particular case, please seek legal assistance from a qualified attorney specializing in these matters.
_______________

Vanessa S. Barcelona is a partner in the law offices of Barcelona & Pilarski, P.A. She is a licensed attorney practicing primarily in the area of U.S. immigration law. She is a graduate of the University of Florida, where she obtained her J.D. and B.A. degrees. She is a member of the Florida Bar Assn., The American Bar Assn., and the American Immigration Lawyers Assn.