| Article Index |
|---|
| Did you ‘seek to acquire’ a visa for your child under Cspa? |
| Page 2 |
| All Pages |
Dear Attorney Gurfinkel:
I filed for adjustment of status in the US when my priority date was current. The adjustment application was pending for almost two years, when it was finally approved. I know that my petition also included my kids in the Philippines. So, as soon as I got my green card, I immediately filed an Application for Action on an Approved petition (Form I-824), in order that my kids could be processed for their immigrant visas at the US Embassy. One of my kids had already turned 21 but I still felt that he was eligible under the Child Status Protection Act (CSPA) for a visa, since I did the math, and his age came out to be under 21. However, at the interview, the consul refused to issue his visa, stating that although his age was calculated to be under 21, he did not pursue his visa within one year of availability. How can that be possible? As soon as I got my green card through adjustment, I immediately filed the I-824. So how come the consul is saying that my kid didn’t timely pursue his visa?Very truly yours,
V.K.
Dear V.K.:
The Child Status Protection Act (CSPA) can be very complex and confusing with its mathematical computations, and various steps and requirements, depending on whether the petition is by a US citizen parent, or through other family or employment-based petitions.
For petitions by US citizen parents, it is relatively straightforward: the child needs to be petitioned before the child’s 21st birthday. Then, the child’s age is "locked in" as a minor.
For all the other family and employment-based petitions, it is more complicated, and involves a two step process:
Step 1. Calculate the child’s age. This is done by determining how long it took USCIS to approve the petition. You take the date the petition was filed and the date the petition was approved. Was it one month? One year, Two years? Next, you wait for the priority date to become current. Once the priority date is current, you determine how old your child is on that date. You then subtract from the child’s age, the length of time it took USCIS to approve the petition. So, let’s say at the time the priority date is current, the child is 21 years and 8 months old. However, it took USCIS 9 months to approve the petition. So, if you subtract 9 months from the kid’s age, the kid will be under 21. However, if it took USCIS one month to approve the petition, the kid will be over 21 (in which case there is no need for step 2).
Step 2. The qualifying child must "seek to acquire" his or her visa within one year of visa availability. This is the tricky or confusing part. The one year deadline starts from the date the priority date becomes current, not one year from the time the parent adjusts status. Many people get confused on this point, and when the priority date becomes current, they file adjustment of status for themselves in the US, but wait to file the Form I-824 until after they get their green card. But, if it takes more than one year to adjust status, then more than one year would have passed from the time the visa was "available". In that case, the child would have missed out on complying with this one-year "sought to acquire" requirement.
| < Prev | Next > |
|---|
