Applicants may Benefit from CSPA despite Late Filing
By Reuben S. Seguritan
August 12, 2015
The Child Status Protection Act (CSPA) grants relief to certain children of U.S. citizens and lawful permanent residents who would have lost the privilege of getting a green card simply for turning 21 years old. It allows a child who has aged out or turned 21 to still be considered a “child” for immigration benefits purposes.
To determine the age of the applicant using the CSPA formula, the length of time the petition was adjudicated is deducted from the beneficiary’s age on the date a visa number became available. If using this formula the child’s age falls below 21, the child can benefit from the CSPA if he “sought to acquire” lawful permanent resident status within one year of visa availability.
A child is considered to have met the “sought to acquire” requirement if he filed Form I-485, application for adjustment of status, submitted an application for immigrant visa and alien registration or filed Form I-824, application for action on an approved application or petition filed on his behalf.
If the child did not do any of the above within one year of visa availability, he may still be covered by the CSPA protection if he can show that his failure to timely file was due to “extraordinary circumstances” beyond his control.
The Board of Immigration Appeals, in Matter of O. Vazquez, found that extraordinary circumstances may warrant the exercise of discretion for late filings, if the applicant demonstrates the following: (1) the circumstances were not created by the alien through his own action or inaction, (2) the circumstances were directly related to the alien’s failure to file the application within the one year period; and (3) the delay was reasonable under the circumstances.
The USCIS released a policy memorandum providing guidance on evaluating claims of “extraordinary circumstances” for failing to timely satisfy the “sought to acquire” requirement.
One example of extraordinary circumstance which may warrant a favorable exercise of discretion as set forth in the memo is the ineffective assistance of counsel.
The following requirements, however, should be met: (1) that the alien files an affidavit setting forth in detail the agreement entered into with counsel with respect to the actions to be taken and what representations the counsel did or did not make; (2) that the counsel has been informed of the allegations against him and have been given the opportunity to respond or good faith effort to do so is shown; and (3) the alien indicates whether the complaint has been filed and an explanation if no complaint is filed.
Serious illness or mental or physical disability during the one year period or legal disability such as instances where the applicant was suffering from mental impairment during the one year period are also examples of extraordinary circumstances that may warrant a favorable exercise of discretion.
Another example is the death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.
Also, where a timely application was rejected by the USCIS as improperly filed and was returned to applicant for correction and the deficiency was corrected within a reasonable period, the applicant’s failure to meet the deadline may be excused.
In determining whether the applicant demonstrated extraordinary circumstances for failing to timely file, the officers consider the totality of the circumstances and use the “preponderance of the evidence standard.”