Recently, the Eleventh Circuit Court of Appeals (which is one level below the US Supreme Court) held, in a published opinion, that the “sought to acquire” requirement of the Child Status Protection Act (CSPA) does not require the ACTUAL FILING of any form or application (such as the DS-230, I-824 or I-485). Instead, this requirement can also be satisfied by hiring an attorney to process your child’s case, or taking other “substantial steps” in pursuing lawful permanent resident (LPR) status, within one year of visa availability.
This is a great case for children seeking age-out benefits under the CSPA, but were denied because they did not “seek to acquire” a visa within one year of availability, even though their age was calculated at being under 21.
By way of background, the CSPA allows children who aged out to nevertheless be considered a “child” if they satisfy a two-step procedure:
Their age is calculated at being under 21, based on a mathematical formula; and
They “sought to acquire” LPR status within one year of visa availability (meaning within one year of the priority date being “current”).
In many cases, step 2 has become the problem. Although the child’s age is determined to be under 21, the child supposedly did not seek to acquire the visa within one year. (DHS and the Department of State (DOS) had interpreted “sought to acquire” as requiring the filing of certain forms and had rejected arguments (based on unpublished BIA decisions) that hiring an attorney within one year could also fulfill this requirement, because those decisions were unpublished.) Well, now there is a published opinion that says hiring an attorney satisfies the “sought to acquire” requirement!
In this published decision, the alien’s visa became available in 2004, but he did not file for adjustment of status until 3 years later, in 2007. His adjustment was denied because DHS contended that he did not “seek to acquire” a visa within one year. Instead, he waited 3 years to do so, when he filed his Form I-485. On appeal, the alien argued that the phrase “sought to acquire” should be interpreted to mean “a clear manifestation of a step toward filing the particular application with an agency of the Department of Homeland Security.”
The Eleventh Circuit noted that there was no dispute that the alien “met the age requirement under this provision.” The issue was whether the alien sought to acquire a visa within one year of availability. Unlike the DHS and DOS, the court noted a number of unpublished BIA decisions, which held that the “sought to acquire” requirement is not only satisfied by filing a particular form or application, but could also be satisfied by the alien or his family hiring an attorney to prepare the form or application within the one-year period, without having actually filed it within that one year.
The Eleventh Circuit, in its published decision stated that:
“We find the BIA’s reasonable interpretation in these [unpublished] cases to be persuasive and in sync with the intent of Congress in enacting the CSPA. Hence, we conclude that Congress’s use of the term “sought to acquire” in the CSPA is broad enough to encompass substantial steps taken toward the filing of the relevant application during the relevant time period, but does not require that the alien actually file or submit the application.”
In this particular case, the alien merely wrote a letter to the NVC asking that they not terminate his case. He took no other steps at that time. The Court concluded that this was not a “substantial step” toward to pursuing LPR status. Nevertheless, the Eleventh Circuit endorsed the unpublished BIA decisions (which DHS and DOS were not following), and held that hiring an attorney within one year does satisfy this requirement.
If you believe that your child was eligible under the CSPA, but was denied or refused his or her visa under similar circumstances as this case, I would strongly suggest that you seek the advice of a reputable attorney, who could perhaps argue or present your case, have it re-opened, reconsider, reversed, or whatever else is necessary to see that your child obtains his or her green card.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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