Lev Kobrin
03-24-2005, 07:37 AM
Potent Combination: Child Status Protection Act And The USA Patriot Act
by Cyrus D. Mehta (http://www.ilw.com/lawyers/articles/2005,0324-mehta.shtm#bio#bio)
The Child Status Protection Act (CSPA) artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. There may be times, however, when the CSPA still cannot protect a child from aging out. This article instructs how one can combine the CSPA with a little known provision of the USA Patriot Act to ensure that the child fictionally still remains under 21.
Section 203(h) of the Immigration and Nationality Act (INA), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition. The Department of State Cable of January 5, 2003 (DOS Cable) provides a simplified summary of this formula, as follows:
“For Principals in F2A Cases and for Derivatives in Preference and DV cases: Age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval).”
Furthermore, Section 203 (h) also requires the alien to seek LPR status within one year of visa availability.
Let’s illustrate how Section 203(h)’s beneficial impact might still not be able to help a child through a fictional hypothetical.
In 1992, John Patel, a US citizen, sponsored his sister residing in India, Jane Patel, for permanent residency under the Family-based Fourth Preference. John Patel filed the Form I-130 petition on May 1, 1992 on behalf of Jane Patel. It took 60 days for the I-130 petition to get approved. But Jane Patel had to wait for over 12 years in the backlogged Fourth Preference category, and the visa only became available to her on February 1, 2005.
Jane Patel has a daughter, Mary Patel, who was 8 years when the I-130 was filed on behalf of her mother. Mary Patel was born on November 1, 1983. On February 1, 2005, Mary Patel was already 21 years and three months old and could not accompany her mother to the US.
The CSPA on its own would not be able to protect Mary Patel. Even if we subtract the number of days the I-130 took to get approved in 1992, 60 days, from her age of 21 years and 90 days (three months), she will still technically be 21 years and 30 days old.
But do not give up. Consider Section 424 (2) of the USA Patriot Act, which provides, in relevant part:
For purposes of the administration of the Immigration and Nationality Act (8 U.S.C. 1101 et. seq.), in the case of an alien-
2) whose 21st birthday occurs after September 2001, and who is the beneficiary of a petition or application filed under such Act on or before September 11, 2001, the alien shall be considered to be a child for 45 days after the alien’s 21st birthday for purposes of adjudicating such petition or application.
According to Section 424(2) of the Patriot Act, Mary Patel would be considered a child for 45 days after her 21st birthday, which occurred on November 1, 2004. Thus, Section 424(2) would allow her to remain a child till December 15, 2004, and she would thus be considered 21 years on December 16, 2004.
If we now combine the beneficial impact of both Section 424(2) and Section 203(h), Mary should still be considered a child as of February 1, 2005. If Section 424(2) rendered Mary 21 years of age on December 16, 2004 and we subtract 60 days (the number of days it took for the I-130 to get approved) from February 1, 2005, then Mary Patel should be considered to be under 21 on February 1, 2005, and would thus be eligible for an immigrant visa as a derivative to her mother, Jane Patel, who is the principal beneficiary of the I-130 petition.
While this is a novel interpretation for determining the age of a child by combining the Patriot Act and the CSPA, the DOS Cable instructs consuls to apply the Patriot Act to another provision of the CSPA, namely Section 8, which deals with when the CSPA went into effect. We extract the relevant instruction:
10. NOTE: In determining whether an alien aged out before or after August 6, 2002, post should keep in mind that the special 45-day Patriot Act rules discussed in Ref B Aldac still apply. Under those rules, if the alien is the beneficiary of a petition filed before September 11, 2002, the alien remains eligible for child status for 45 days after turning 21. For example, an alien who turned 21 on August 5, 2002, but who was the beneficiary of a petition filed before Sep. 11, 2001, would not actually age out until 45 days after the alien’s 21 birthday, i.e., on September 19, 2002. Therefore, even though the alien in this example turned 21 before the CSPA went into effect on August 6, 2002, the alien did not age out until after that date, and therefore the CSPA would apply to that alien’s case, regardless of whether or not the alien had filed an immigrant visa application before August 6, 2002.1 (http://www.ilw.com/lawyers/articles/2005,0324-mehta.shtm#A#A)
The above instruction applies the Patriot Act broadly to beneficiaries and derivative beneficiaries of petitions filed before September 11, 2001, albeit to the applicability of Section 8 of the CSPA. However, there is no Congressional restriction to the Patriot Act also being applied in calculating the age of a child under Section 203(h). Moreover, emerging case law on the CSPA suggests that the CSPA must be interpreted expansively.Padash v. INS, 358 F.3d 1161 (9th Cir. 2004) (successful challenge to the Board of Immigration Appeal’s restrictive interpretation of the CSPA phrase “final determination”).2 (http://www.ilw.com/lawyers/articles/2005,0324-mehta.shtm#B#B)Indeed, this argument advanced by the writer on behalf of a client was accepted at an overseas consulate and this should encourage others to combine the CSPA with Section 424 (2) of the Patriot Act to artificially freeze the age of children who would otherwise not be able to accompany their parents to the United States on a green card.
1 Even a legacy INS memo includes a similar instruction on delaying the age by 45 days with respect to an alien who benefits from section 424 of the USA Patriot Act. Memo, Johnny N. Williams, Exec. Associate Commissioner, HQADN 70/6.1.1, February 14, 2003.
2 For more details on expansive CSPA interpretations, See Mary A. Kenney, “Aging Out”: Recent Developments Related To The Child Status Protection Act And Other Provisions, Practice Advisory, American Immigration Law Foundation, www.ailf.org (http://www.ailf.org/)
by Cyrus D. Mehta (http://www.ilw.com/lawyers/articles/2005,0324-mehta.shtm#bio#bio)
The Child Status Protection Act (CSPA) artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. There may be times, however, when the CSPA still cannot protect a child from aging out. This article instructs how one can combine the CSPA with a little known provision of the USA Patriot Act to ensure that the child fictionally still remains under 21.
Section 203(h) of the Immigration and Nationality Act (INA), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition. The Department of State Cable of January 5, 2003 (DOS Cable) provides a simplified summary of this formula, as follows:
“For Principals in F2A Cases and for Derivatives in Preference and DV cases: Age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval).”
Furthermore, Section 203 (h) also requires the alien to seek LPR status within one year of visa availability.
Let’s illustrate how Section 203(h)’s beneficial impact might still not be able to help a child through a fictional hypothetical.
In 1992, John Patel, a US citizen, sponsored his sister residing in India, Jane Patel, for permanent residency under the Family-based Fourth Preference. John Patel filed the Form I-130 petition on May 1, 1992 on behalf of Jane Patel. It took 60 days for the I-130 petition to get approved. But Jane Patel had to wait for over 12 years in the backlogged Fourth Preference category, and the visa only became available to her on February 1, 2005.
Jane Patel has a daughter, Mary Patel, who was 8 years when the I-130 was filed on behalf of her mother. Mary Patel was born on November 1, 1983. On February 1, 2005, Mary Patel was already 21 years and three months old and could not accompany her mother to the US.
The CSPA on its own would not be able to protect Mary Patel. Even if we subtract the number of days the I-130 took to get approved in 1992, 60 days, from her age of 21 years and 90 days (three months), she will still technically be 21 years and 30 days old.
But do not give up. Consider Section 424 (2) of the USA Patriot Act, which provides, in relevant part:
For purposes of the administration of the Immigration and Nationality Act (8 U.S.C. 1101 et. seq.), in the case of an alien-
2) whose 21st birthday occurs after September 2001, and who is the beneficiary of a petition or application filed under such Act on or before September 11, 2001, the alien shall be considered to be a child for 45 days after the alien’s 21st birthday for purposes of adjudicating such petition or application.
According to Section 424(2) of the Patriot Act, Mary Patel would be considered a child for 45 days after her 21st birthday, which occurred on November 1, 2004. Thus, Section 424(2) would allow her to remain a child till December 15, 2004, and she would thus be considered 21 years on December 16, 2004.
If we now combine the beneficial impact of both Section 424(2) and Section 203(h), Mary should still be considered a child as of February 1, 2005. If Section 424(2) rendered Mary 21 years of age on December 16, 2004 and we subtract 60 days (the number of days it took for the I-130 to get approved) from February 1, 2005, then Mary Patel should be considered to be under 21 on February 1, 2005, and would thus be eligible for an immigrant visa as a derivative to her mother, Jane Patel, who is the principal beneficiary of the I-130 petition.
While this is a novel interpretation for determining the age of a child by combining the Patriot Act and the CSPA, the DOS Cable instructs consuls to apply the Patriot Act to another provision of the CSPA, namely Section 8, which deals with when the CSPA went into effect. We extract the relevant instruction:
10. NOTE: In determining whether an alien aged out before or after August 6, 2002, post should keep in mind that the special 45-day Patriot Act rules discussed in Ref B Aldac still apply. Under those rules, if the alien is the beneficiary of a petition filed before September 11, 2002, the alien remains eligible for child status for 45 days after turning 21. For example, an alien who turned 21 on August 5, 2002, but who was the beneficiary of a petition filed before Sep. 11, 2001, would not actually age out until 45 days after the alien’s 21 birthday, i.e., on September 19, 2002. Therefore, even though the alien in this example turned 21 before the CSPA went into effect on August 6, 2002, the alien did not age out until after that date, and therefore the CSPA would apply to that alien’s case, regardless of whether or not the alien had filed an immigrant visa application before August 6, 2002.1 (http://www.ilw.com/lawyers/articles/2005,0324-mehta.shtm#A#A)
The above instruction applies the Patriot Act broadly to beneficiaries and derivative beneficiaries of petitions filed before September 11, 2001, albeit to the applicability of Section 8 of the CSPA. However, there is no Congressional restriction to the Patriot Act also being applied in calculating the age of a child under Section 203(h). Moreover, emerging case law on the CSPA suggests that the CSPA must be interpreted expansively.Padash v. INS, 358 F.3d 1161 (9th Cir. 2004) (successful challenge to the Board of Immigration Appeal’s restrictive interpretation of the CSPA phrase “final determination”).2 (http://www.ilw.com/lawyers/articles/2005,0324-mehta.shtm#B#B)Indeed, this argument advanced by the writer on behalf of a client was accepted at an overseas consulate and this should encourage others to combine the CSPA with Section 424 (2) of the Patriot Act to artificially freeze the age of children who would otherwise not be able to accompany their parents to the United States on a green card.
1 Even a legacy INS memo includes a similar instruction on delaying the age by 45 days with respect to an alien who benefits from section 424 of the USA Patriot Act. Memo, Johnny N. Williams, Exec. Associate Commissioner, HQADN 70/6.1.1, February 14, 2003.
2 For more details on expansive CSPA interpretations, See Mary A. Kenney, “Aging Out”: Recent Developments Related To The Child Status Protection Act And Other Provisions, Practice Advisory, American Immigration Law Foundation, www.ailf.org (http://www.ailf.org/)