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US IMMIGRATION UPDATES
IMMIGRATION / 01 DEC 2002 |
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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)
By Vanessa S. Barcelona
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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). |
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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.br>
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.
AAs 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.
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SPONSORED LINKS/td>
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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. |
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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(en) 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 with the law offices
of Barcelona & Pilarski, P.A. She obtained her law degree from the
University of Florida. She is a member of the American Immigration
Lawyers Association, the American Bar Association, and the Florida
Bar. Please send all e-mails to: vsbarcelona@earthlink.net
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