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Child Status Protection Act of 2002

The immigration services done here will be to determine if the adult is a ‘child’ under the CSPA and their age was locked in by the CSPA to be under 21 years old. A new law, the “Child Status Protection Act of 2002” was signed into law by the President on AUGUST 6, 2002 and effective on that date. It also provides initial interpretative guidance regarding it, as well as procedures to be used to implement it. The new law radically changes the process for determining whether a child has “aged out” for the purpose of the issuance of visas and the adjustment of status of aliens in most immigrant categories.

The text of the law is as follows:

“SECTION 1. SHORT TITLE.
This Act may be cited as the `Child Status Protection Act’. SEC. 2. USE OF AGE ON PETITION FILING DATE, PARENT’S NATURALIZATION DATE, OR MARRIAGE TERMINATION DATE, IN DETERMINING STATUS AS IMMEDIATE RELATIVE. Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended by adding at the end the following:
`(f) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE IMMEDIATE RELATIVES-

`(1) AGE ON PETITION FILING DATE- Except as provided in paragraphs (2) and (3), for purposes of subsection (b)(2)(A)(i), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using the age of the alien on the date on which the petition is filed with the Attorney General under section 204 to classify the alien as an immediate relative under subsection (b)(2)(A)(i).
`(2) AGE ON PARENT’S NATURALIZATION DATE- In the case of a petition under section 204 initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent’s naturalization.
`(3) AGE ON MARRIAGE TERMINATION DATE- In the case of a petition under section 204 initially filed for an alien’s classification as a family-sponsored immigrant under section 203(a)(3), based on the alien’s being a married son or daughter of a citizen, if the petition is later converted, due to the legal termination of the alien’s marriage, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i) or as an unmarried son or daughter of a citizen under section 203(a)(1), the determination described in paragraph (1) shall be made using the age of the alien on the date of the termination of the marriage.’. SEC. 3. TREATMENT OF CERTAIN UNMARRIED SONS AND DAUGHTERS SEEKING STATUS AS FAMILY-SPONSORED, EMPLOYMENT-BASED, AND DIVERSITY IMMIGRANTS. Section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended by adding at the end the following:
`(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
`(1) IN GENERAL- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–
`(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
`(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

`(2) PETITIONS DESCRIBED- The petition described in this paragraph is–
`(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or
`(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).
`(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(4) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.’
SEC. 4. USE OF AGE ON PARENT’S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ASYLUM. Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(3)) is amended to read as follows:
`(3) TREATMENT OF SPOUSE AND CHILDREN-
`(A) IN GENERAL- A spouse or child (as defined in section 101(b)(1) (A), (B), (C), (D), or (E)) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.
`(B) CONTINUED CLASSIFICATION OF CERTAIN ALIENS AS CHILDREN- An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and section 209(b)(2), if the alien attained 21 years of age after such application was filed but while it was pending.’
SEC. 5. USE OF AGE ON PARENT’S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ADMISSION AS REFUGEE. Section 207(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(2)) is amended–
(1) by striking `(2)’ and inserting `(2)(A)’; and (2) by adding at the end the following:

`(B) An unmarried alien who seeks to accompany, or follow to join, a parent granted admission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.’ SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS AND DAUGHTERS OF NATURALIZED CITIZENS. Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter’s classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
`(2) EXCEPTION- Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such
conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter’s eligibility for admission as a family- sponsored immigrant shall be made as if such naturalization had not taken place.
`(3) PRIORITY DATE- Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
`(4) CLARIFICATION- This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.’
SEC. 7. IMMIGRATION BENEFITS FOR CERTAIN ALIEN CHILDREN NOT AFFECTED. Section 204(a)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(D)) is amended by adding at the end the following new clause:
`(iii) Nothing in the amendments made by the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under this subparagraph.’

SEC. 8. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other
beneficiary of–
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such date.”

This law is new and is interpreted differently by either Department of State, or BCIS . However, a general interpretation is below. The intent of this legislation (CSPA) is to preserve child status for certain alien children beneficiaries who age-out, and particularly with respect to section 3, age- out because of delays in processing. Age-out benefits are extended to applicants who should be processed as Immediate Relative children (IR-2, IR-3, IR-4) (note that although IR-3s and IR-4s are technically covered by the new law, application in those cases would appear to be very rare) and applicants who should be processed as Second Preference children (F2-A), but who attain the age of 21 before their cases are finalized, as well as derivative beneficiary children in all preference categories and DV cases.

The law also provides relief for F2B applicants in cases where the petitioner has naturalized and the applicant would be disadvantaged by a conversion to F1 status due to a less favorable F1 cut-off date. (This particular provision is only of interest to natives of those few countries (e.g., the Philippines) where the F1 cut-off date is earlier than the F2B cut-off date).

The CSPA also provides age-out relief for children of asylees and refugees, but these sections will not be addressed in this cable since interpretations regarding them must come from BCIS .

Because the language in some sections of the CSPA is extremely complicated, especially section 3, there may be refinements in interpretation with additional guidance to follow, as needed. To the extent possible, automated systems will be reworked to implement the new rules, but necessary adjustments likely will not be completed in the immediate future. Any new procedures or processes to be used in these cases will be the subject of future cables as they are developed.

Section 2 establishes rules for determining whether certain aliens are Immediate Relatives. Under the new rules, consular officers will use the age of the beneficiary on the date of filing the Form I-130, Petition for Alien Relative, to determine whether the applicant qualifies as an IR-2, IR-3 or IR-4. For example, if a Form I-130 is filed for a child of an American when the child is under 21, the child will permanently qualify as a child as long as he/she does not marry.

Section 2 also amends the Act to allow the age of an alien child who is a Second Preference beneficiary but whose parent/s naturalizes and whose petition is converted to Immediate Relative classification, to be considered the age on the date of naturalization. Consular officers will now use the child’s age on the date of the parent’s naturalization to determine whether the child will be eligible for Immediate Relative status. For example, if a LPR files a Form I-130 for a 17 year-old son and then naturalizes when the son is 20, the son will remain eligible for a visa as an IR-2, even if the son has attained the age of 22 on the date of visa application. The applicant should submit evidence of his parent’s naturalization (a bona fide copy of the naturalization certificate) to establish eligibility for age-out relief under this provision of the CSPA.

Section 2 also amends the Act to allow third preference married children of Americans to use the age on the date of the termination of a marriage when applying for a visa. If the alien is under 21 at the time of the termination of his/her marriage, then his/her petition will convert to IR- 2. If the alien is 21 or older on the date his/her marriage is terminated, an F-3 will convert to F-1 status. For example, if the 19 year-old married son of an American petitioner obtains a divorce before attaining 21, as long as he remains unmarried, the son will be classifiable as an IR-2, even if he does not apply for a visa until age 23.

Aliens who qualify as a K-4 child are eligible for child status protection under this section if a separate immediate relative petition has been filed in their name and they are accompanying a K-3 parent.

Section 3 of the CSPA applies to:
— F2A principal applicants;
— derivative applicants in all family- and employment-based preference categories; and
— derivative applicants in DV cases.

This section provides relief from age-out by establishing the alien’s age as of the date a visa becomes available for the alien (or the alien’s parent), minus the number of days that the petition was pending. Only those aliens who seek to acquire the status of an alien lawfully admitted for permanent residence within one year of visa availability are eligible for relief under this section. For this section, visa availability is defined to require both a current priority date and an approved petition. The number of days a petition has been pending is calculated from the date the petition was filed to the date the petition is adjudicated. “Seeks to acquire the status of an LPR” will be defined to mean apply for an immigrant visa, i.e., the date of visa application.

DV Applicants. Section 3 also applies to derivative DV applicants. Because the DV process differs substantially from the preference process, however, treatment of DV derivatives will also be somewhat different. For the purpose of calculating the period during which the “petition is pending”, VO has decided to use the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal applicant that his/her application has been selected (congratulatory letter). That period will be subtracted from the derivative alien’s age on the date the visa becomes available to the principal alien. The date the visa becomes available will be the first day on which the Department determines the principal alien’s selection number becomes eligible for visa processing.

V Applicants. While subject to revision, the Department interprets V visa applicants as ineligible for child status protection under this section.

Section 6 of the CSPA addresses the problem encountered by Philippine F2-B applicants whose parents naturalize. Automatic conversion from F2B to F1 at the time of their parent’s naturalization disadvantages these beneficiaries because the cutoff date for Philippine F1s is earlier than the cutoff date for Philippine F2Bs. Although this section continues to allow for the automatic conversion of preference categories when a parent naturalizes, it also permits the son/daughter beneficiary to make a request to the Attorney General that such conversion not occur. At this time, it is not known how this request to the Attorney General will be made or what formalities will be required.