The U. S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on June 6, 2014, containing guidance on a somewhat technical, but important, issue under the Child Status Protection Act (CSPA). The guidance addresses the "extraordinary circumstances" exception that allows the USCIS to approve a CSPA request, even if the beneficiary fails to take appropriate action on the case within the standard time limits. The memorandum also provides for the possibility of filing motions to reopen (MTRs) on CSPA cases that were denied previously for failure to act within the requisite timeframe.
CSPA Protects Children Who may "Age Out"
The CSPA provides a mechanism under which an individual can be considered to be under the age of 21 years for purposes of obtaining immigration benefits, even after the beneficiary is chronologically 21 or older. This is important in an immigration context to avoid what is known as aging out of qualifications for permanent immigration benefits. A more detailed overview of the CSPA is provided in the MurthyDotCom NewsBrief, Child Status Protection Act Basics (Part 1 of 2) (28.Jun.2013).
One-Year "Sought to Acquire" Rule
One of the important CSPA requirements is that the beneficiary must seek to acquire permanent residence status within one year of an immigrant visa number availability. That is, once the priority date becomes current, the person who wishes to utilize the CSPA has one year to take appropriate steps to pursue the permanent residence ("green card") case.
The memorandum references a June 8, 2012 Board of Immigration Appeals (BIA) decision in detailing the steps recognized as sufficient to meet the sought-to-acquire requirement. There are some complexities that are outside of the scope of this article. Generally, however, it is sufficient if a person files an application for adjustment of status (form I-485), an application for action on approved application / petition (form I-824), or submits an application for immigrant visa (form DS-230). Subject to limited exceptions, these steps must be taken within a year, or the individual will no longer be protected under the CSPA.
BIA on Discretion under Extraordinary Circumstances
Clearly, with such an important protection at stake when one has a child who may age out, it is best to move forward with the case without delay, keeping in mind that immigration law is complex and case processing can span many years. Therefore, there are many potential hazards, given the myriad of possible situations, that could cause an individual to fail to take the necessary steps at the proper time. It is in this context that the Board of Immigration Appeals (BIA) found that the USCIS has discretionary authority to excuse a late filing under the sought-to-acquire requirements if extraordinary circumstances exist.
USCIS Criteria for Discretion
The USCIS memorandum sets out criteria for an adjudicator to use discretion and excuse a late filing. The memorandum instructs adjudicators to make extraordinary circumstances determinations on a case-by-case basis, under a totality of the circumstances. The adjudicator should exercise discretion in favor of the beneficiary if:
- The circumstances were not created by the individual's own action or inaction.
- The circumstances were directly related to the failure to act within the one-year period.
- The delay was reasonable under the circumstances.
USCIS Examples to Justify Favorable Discretion
The memorandum sets forth some examples of circumstances that may be sufficient to justify a favorable exercise of discretion. These include, but are not limited to:
- Serious illness or mental / physical disability during the one-year period
- Legal disability, such as mental impairment
- Ineffective assistance of counsel (subject to specific requirements)
- Timely filing rejected by the USCIS, followed by a prompt, corrected filing
- Death or serious illness or incapacity of legal representative or immediate family member
Motions to Reopen for Cases Denied After 08.Jun.2012
The memorandum allows for the filing of an MTR on a case that was denied solely under the sought-to-acquire provisions after the June 8, 2012 BIA decision. Such motions can be filed under the changed circumstances provisions that allow for late-filed motions when there is a change in the law. The motion must evidence extraordinary circumstances, as explained above.
Conclusion
The CSPA provisions can be quite complicated. The most recent USCIS memorandum is yet another illustration of some of these complexities. Whenever there is a potential for a child / beneficiary to age out of immigration eligibility, it is important to seek legal guidance promptly. Those who may benefit from this most recent USCIS memorandum, either through a motion to reopen or an excusable late filing, are free to contact the experienced and knowledgeable attorneys at the Murthy Law Firm.
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