05 Dec CSPA for Children of a Permanent Resident

By Atty. Crispin Caday Lozano

Requesting a CSPA for children of a Permanent Resident is a complicated process that need the assistance of an experienced immigration lawyer.  Before you start the process, it is advisable to consult first with an experienced immigration lawyer.

The process for determining the age of the child beneficiary—either direct or derivative—of a

Family-sponsored or employment-based visa petition or of a diversity visa application under the

CSPA is more complicated. The statutory formula for these cases is that the child’s age will freeze as of the date that a visa number becomes available for the petition in question reduced by the number of days that the petition was pending, but only if the child seeks to acquire the status of an LPR within one year of the date the visa became available.  This CSPA benefit also applies to self-petitioners and to derivatives of self-petitioners.

This formula can be broken down into three steps:

• First, determine the child’s age at the time a visa number becomes available;
• Second, subtract from this age the number of days that the visa petition was pending; and
• Third, determine whether the beneficiary sought LPR status within one year of the visa  availability date (or if the one year is not yet over, ensure that the child beneficiary takesthe necessary steps).

The first two steps will determine the child’s age. This age will only be frozen, however, if the third step is met. Each of these steps is discussed briefly below. 

Note: When calculating the child’s age, remember that the USA PATRIOT Act provides extended “child” status to someone who turned 21 during or after September 2001, provided he or she is a beneficiary of a petition or application that was filed on or before September 11, 2001.  Beneficiaries of petitions filed on or before this date that turned 21 during September 2001 are entitled to a 90-day extension of their child status. This means that these beneficiaries can subtract 90 days from their biological age before calculating their CSPA age.

Beneficiaries of petitions filed on or before this date that turn 21 after September 2001 are entitled to a 45-day extension of their child status, which means they can subtract 45 days from their biological age. 

a. How do I determine when a visa number has become available?

The first step is to determine the child’s age at the time that a visa number became available for the petition in question. Both USCIS and DOS state that a visa number becomes available on the first day of the month that the DOS Visa Bulletin says that the priority date has been reached. If the visa number is already available when the petition is approved, however, the agencies interpret the “visa availability” date for the CSPA as the date that the petition is approved. If a visa availability date retrogresses after the individual has filed an application for adjustment of status (Form I-485) based on an approved visa petition, USCIS states that it will retain the I-485 and note on it the visa availability dates at the time that the I-485 was filed. When a visa number again becomes available; USCIS is to calculate the beneficiary’s age under the CSPA formula by using the earlier visa availability date marked on the I-485. 

b. How do I determine how long a visa petition has been pending?

A child’s age will be determined by subtracting the number of days that the visa petition was pending from the child’s age at the time a visa number became available. Generally, a petition is pending between the date that the petition is properly filed (receipt date) and the date that an approval is issued. In family-sponsored cases, the receipt date is also the priority date. For employment-based cases, however, the date to be used in CSPA calculations is the date the I-140 visa petition is filed (the receipt date) and not the priority date. 

c. How do I determine whether the beneficiary “sought to acquire” LPR status within one year of visa availability?

The child’s age—determined by the first two steps described above—will freeze only if the beneficiary has “sought to acquire” the status of an LPR within one year of the visa availability. Note:   This is not a legal advice.  You should seek the advice of an experienced immigration lawyer about your specific circumstances.

SUCCESS STORIES 

1. For the month of November 2018, we received approvals of two adjustment of status, one naturalization and one U visa petition.
2. For the month of October 2018, we received five approvals of N-400 and one approval for adjustment of status, two approvals of I-601A waiver of unlawful presence and one I-751 Removal of Condition on Residence.
3. On September 19, 2018, we received an approval of N-400 naturalization application and one Fiancée visa petition..
4. For the month of August 2018, we received an approval of four Naturalization applications and five adjustment of status applications.
5. On July 27, 2018, we received an approval for permanent resident for a client who was abused by her spouse under VAWA.
6. For the months of May to June 2018, we have received four Naturalization applications approvals and two Adjustment of Status approvals
7. On April 18, 2018, we received a grant of waiver from Immigration Court for a husband and wife client who made a misrepresentation of their  marital status but has no criminal records, has long residence and strong family ties in the U.S.
8. On April 12, 2018, the Immigration Judge in San Francisco approved a waiver of misrepresentation in applying for a visa for our client who has been in the      U.S. for 26 years, no criminal record and strong family ties in the U.S.
9. On April 3, 2018, we received an approval from USCIS for a U visa for a client who was a victim of crime.
10. For the month ending March 31, 2018, we received approvals for four naturalization applications.
11. For the week ending March 31, 2018, we received approvals of six Adjustment of Status, two Application to Remove Condition on Residence and two Renewal of Green Card approvals.
12. On March 9, 2018, we received an approval from USCIS for adjustment of status for a client who was abused by her spouse. The I-601 waiver was approved based on extreme hardship.
13. On February 15, 2018, we received a grant from Immigration Judge for a waiver of misrepresentation for a client who has been in the U.S. for long period of time.

If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem         gets worse which could lead to deportation and family separation.

Crispin Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers.  His contact phone is 1-877-456-9266, email: info@ccllaw.net