Child Status Protection Act Analysis

Behring’s recent FOIA requested information about various aspects of EB-5. This article will highlight the Child Status Protection Act with reference to training slides from USCIS.

 

1. Introduction to the Child Status Protection Act (CSPA):

 

The Child Status Protection Act (CSPA) was enacted August 6, 2002 to prevent certain children of U.S. immigrants from aging out of eligibility for lawful permanent resident status. Typically, when a child turns 21 years old, they may no longer be eligible to adjust status as a dependent. However, the CSPA allows applicants to “freeze” their age under certain circumstances, allowing them to remain eligible as dependents.

The CSPA applies to family-sponsored immigrants, employment-based immigrants, and derivative beneficiaries of the principal applicants under specific visa classifications, such as EB-5.

 

2. Concurrent filing of the EB-5 Petition and I-485 Adjustment of Status locks in the age of a minor if the filing occurred when visas were available.

 

The CSPA requires that the applicant must take steps to seek permanent residence within one year of their visa becoming available.

The applicant may satisfy the requirement by:

1. Filing Form I-485 (Application to Register Permanent Residence or Adjust Status).
2. Submitting a completed Form DS-260 (Immigrant Visa Electronic Application).
3. Paying the immigrant visa fee to the Department of State.
4. Paying the Affidavit of Support (Form I-864) review fee.
5. Filing Form I-824 (Application for Action on an Approved Application or Petition).

3. Age Protection Remains through an I-829 Denial.

 

INA 216A (Immigration and Nationality Act Section 216A):

• This section deals with “Conditional Permanent Resident Status for Certain Alien Entrepreneurs, Spouses, and Children.”
• It applies to individuals (like EB-5 investors and their families) who were granted conditional permanent residency status based on investment in a U.S. business that creates jobs.
• Conditional permanent residency is given for a period of two years. Within this period, the entrepreneur (or investor) must meet specific requirements, such as maintaining their investment and fulfilling job creation commitments.
• To remove the conditional status and become a regular permanent resident, the investor and their family must file Form I-829 to show they have met the conditions of the EB-5 program.

 

INA 203(b)(5)(M) (Immigration and Nationality Act Section 203(b)(5)(M)):

• This section falls under the EB-5 Immigrant Investor Program, where foreign nationals can obtain permanent residence by investing in a U.S. commercial enterprise.
• It refers to situations where conditional permanent resident status (based on an EB-5 visa) is terminated either because the investment requirements or job creation requirements were not fulfilled.

If a child of an EB-5 immigrant (under section 203(b)(5)) becomes a conditional lawful permanent resident and later turns 21, they can still be considered a “child” for immigration purposes even after turning 21. This is allowed as long as:

• Their conditional resident status was terminated for reasons under specific immigration sections (216A or 203(b)(5)(M)).
• They remain unmarried.
• The principal parent (the original EB-5 immigrant) files a new petition for them within one year of their conditional status being terminated.

However, this rule can only be applied once after the child reaches 21. If the principal parent tries to file more than one petition after the child turns 21, the child will not be considered under this protection again.

In simpler terms, even after turning 21, a child in the EB-5 program can still qualify as a dependent child for immigration if certain conditions are met, but only one such petition can be filed after they turn 21.

4. Child Status Protection Act Formula and Examples (Non-concurrent Filing).

 

The Child Status Protection Act age is determined by subtracting the number of days the principal applicant’s underlying petition (I-526 or I-526E) was pending from the child’s actual age on the date a visa became available.

The applicant must apply for permanent residence within one year of visa availability.

Impact of Visa Retrogression on the 1-Year Sought to Acquire Requirement

 

If visa availability retrogresses before a continuous 1-year period has elapsed, the applicant has another 1-year period to seek adjustment of status when the visa becomes available again. The adjustment applicant then has 1 year from the subsequent date of visa availability to seek adjustment.

For example: A visa became available on October 1, 2020, according to the Dates for Filing chart. On February 1, 2021, the visa was no longer available. A visa became available again on December 1, 2021. The applicant has until December 1, 2022, to seek adjustment of status.

What Is “Visa Availability?”

 

Visa availability is defined as the first day of the first month when the priority date is current, or the date the petition was approved, whichever is later.

In 2015, the visa bulletin was split into two different charts:

1. Final Action Dates: Indicates when visas can be issued or final actions can be taken.
2. Dates for Filing: Indicates when applicants can begin the application process by filing their Form I-485.

In the past, USCIS used the Final Action Dates chart to determine when a visa became available.

Effective February 14, 2023, USCIS clarified that a visa “becomes available” based on whichever chart (Final Action Dates or Dates for Filing) USCIS is allowing applicants to use to file their adjustment applications in a given month.

• In some months, USCIS allows applicants to file their I-485 based on the Final Action Dates chart.
• In other months, USCIS uses the Dates for Filing chart to determine visa availability for filing.

This change provides flexibility in determining when applicants can file their adjustment applications.

Note that Applicant must check the USCIS Adjustment of Status Filing Charts webpage to see which chart to use because the NVC Bulletin does not state which chart can be used to determine when to file an adjustment of status application.

Child Status Protection Act – One Year Requirement: Extraordinary Circumstances

 

Applicants who fail to meet the sought-to-acquire requirement within one year may still benefit from Child Status Protection Act if they can demonstrate that their failure was due to extraordinary circumstances.

Our friends at www.kldpllp.com recently posted about this issue on LinkedIn here.

To establish extraordinary circumstances, the following must be true:

1. The circumstances were not created by the applicant’s own actions or inaction.
2. The circumstances directly affected the applicant’s ability to seek to acquire status within the one-year period.
3. The delay was reasonable given the circumstances.

Examples of extraordinary circumstances include:

• Serious illness or mental/physical disability of the applicant.
• Legal disability.
• A timely adjustment application was rejected by USCIS as improperly filed, and it was refiled within a reasonable period.
• Death, serious illness, or incapacity of the applicant’s attorney, legal representative, or a member of the applicant’s immediate family.
• Ineffective assistance of counsel, where specific requirements are met.

These circumstances allow applicants to potentially preserve their eligibility for Child Status Protection Act protections even after the one-year filing window has passed.

Child Status Protection Act Example: 24 Year Old Child’s Age is Protected Because of Visa Retrogression

In short, the benefits of filing concurrently within the US allow for age protection if and when the visa bulletin allows for I-485 filing.  For filers overseas, the law and policies of the United States should be dicussed with experienced Immigration Attorneys.