The age of a child being petitioned by a U.S. citizen or permanent resident determines the length of time it takes him/her to become an immigrant.
If the child being petitioned by a U.S. citizen is under 21 and unmarried, a visa number is immediately available as he/she is classified as an immediate relative.
But when he/she turns 21, he/she is classified under the family-based first preference and a visa number will not be available until about fifteen years later in the case of a Filipino.
If the childís parent is a permanent resident, he/she falls under the F2A category which has a waiting time of five years, but when he/she turns 21, he/she is moved to F2B category with a waiting time of about eleven years.
The aging out is often caused by the processing delays. To address the problem, the Child Status Protection Act (CSPA) was signed into law on August 6, 2002.
Under this law, the age of a child of a U.S. citizen is determined at the time of the filing of an alien relative petition (I-130) for the purpose of obtaining immigration benefits. So that if he/she was under 21 when the petition was filed, he/she is still considered as an immediate relative even if the United States Citizenship and Immigration Services (USCIS) does not adjudicate the petition until after the child turns 21.
In the case of a child of a permanent resident, his/her age is determined on the date that a visa number becomes available, reduced by the number of days that the petition was pending.
The CSPA has up to now been confusing in its implementation primarily because the USCIS did not release adequate guidance on how to interpret its provisions.
On May 6, 2008, the USCIS finally came out with a memo that would modify prior interpretations of certain provisions.
The new guidance now benefits aliens with approved immigrant visa petitions before the effective dates of the CSPA but who failed to apply for permanent residence on the date of its enactment. Under a prior USCIS memo, these aliens did not benefit from the new law.
The law, however, does not benefit those who had received a final decision of their applications for permanent residence prior to August 6, 2002.
If the petition was filed by a U.S. citizen, the child would be eligible for permanent residence as an immediate relative provided there was no final decision before August 6, 2002.
If the petition was filed by a permanent resident, and the priority date of the approved petition became current before his/her 21st birthday, the child would not age out provided a final decision was not issued prior to August 6, 2002, and the child applied for permanent residence within a year from the date the priority date became current.
The new guidance memo allows individuals who were previously denied benefits under CSPA to file a motion to reopen or reconsider without paying a filing fee.
The motion will have to state that a visa petition was approved before August 6, 2002 and the I-485 (adjustment of status) was filed after August 6, 2002; the applicant would have been considered below 21 under the CSPA; the applicant applied for permanent residence within one year from the date a visa number was available and the application was denied solely because he/she aged out
There is no deadline for the filing of the motion.
Editorís Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/