Geygan & Geygan, Ltd.

A Cincinnati Immigration Law Firm

  • Home
  • About Us
    • Directions
      • Geygan & Geygan, Ltd.
      • Cleveland Immigration Court
      • USCIS Cincinnati Field Office
    • Why I do what I do
  • Immigration
    • Family Immigration Home
      • K-1 Petition for Alien Fiancé(e)
      • Marriage Green Card
      • Removal of Conditions on Status (I-751)
    • Investment Immigration
      • E-2 Treaty Investor Visa
      • EB-5 Visas
    • Employment Immigration
      • Employment-Based Immigration: First Preference EB-1
      • Employment-Based Immigration: Second Preference EB-2
      • Employment Immigration H-1B
    • Naturalization 2021
    • Preventing Deportation
      • Immigration Court Video
      • Immigration Law Violations
      • Cancellation of Removal
      • I-212 Waivers
      • I-601 Waiver of Inadmissibility
    • Work Card or Employment Authorization Document
    • Nonimmigrant Options
      • H-1B Visas For Specialty Occupations, Like Yours
      • The B Visas: Business or Pleasure?
      • Types of Visas for Temporary Visitors
      • E-1/E-2 Eligibility Requirements
        • The E-1 Treaty Trader Visa
          • E-1 Treaty Traders Details
        • E-2 Treaty Investor Visa
    • I-601A Provisional Unlawful Presence Waiver
    • I-601 Waiver of Inadmissibility
    • Criminal Law and Immigration
    • Temporary Protected Status
    • USCIS Processing Times Calculator 2021
  • Legal Information
  • Archive & Site Map
  • Log In / Out

USCIS provides discretion in extraordinary circumstances for Child Status Protection Act

July 30, 2015 by Thomas Geygan

Natz4An alien seeking classification as a child under sections 203(a)(2)(A) or 203(d), or as a derivative beneficiary under sections 203(a) or 203(b), who has a “CSPA age”8 under 21, must have sought to acquire lawful permanent residence within one year of the visa becoming available.

The alien can request an exercise of discretion as to the one year requirement where the alien can show extraordinary circumstances kept the them from filing within the one year time frame.

In order to establish extraordinary circumstances, the alien must demonstrate that:

  • The circumstances are beyond the control of the alien and must not have been intentionally created by his or her own action or inaction. (See 8 CFR 208.4(a)(5)).
  • Those circumstances were directly related to the alien’s failure to file the application within the one-year period; and
  • The delay was reasonable under the circumstances.

Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to:

  • Serious illness or mental or physical disability during the one-year period;
  • Legal disability, such as instances where the applicant is suffering from a mental impairment, during the one-year period;
  • Ineffective assistance of counsel, when the following requirements are met:
    Alien filed an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;
    Counsel whose integrity or competence is being impugned has been informed of the allegations leveled against him and been given an opportunity to respond, or that a good faith effort to do so is demonstrated; and
    Alien indicates whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities and, if not, why;
  • Death or serious illness or incapacity of the alien’s legal representative or a member of the alien’s immediate family.

Background
The CSPA was enacted on August 6, 2002, and provides continuing eligibility for immigration benefits to the principal and/or derivative beneficiaries of certain benefit requests when the beneficiary has aged-out by turning 21 years of age. The CSPA has wide applicability, covering family and employment-based beneficiaries, diversity visa immigrants, refugees, and asylees when delays in processing visa petitions or applications cause a beneficiary to lose eligibility for classification as a child solely due to reaching 21 years of age.

INA 203(h)(1)(A) and (B) state that to determine whether an alien satisfies the age requirement for classification as a child, the calculation is “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) of this section, the date on which an immigrant visa number became available to 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 the number of days in the period during which the applicable petition described in paragraph (2) was pending”. This is the calculation that will be used for the purpose of determining if an alien qualifies for classification as a child, 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 [emphasis added].2 Previous USCIS policy on the “sought to acquire” requirement did not allow officers to use discretion in considering late filings. Matter of O. Vasquez allows for discretion in these determinations.

Filed Under: AOS Employment, AOS Family, AOS Marriage, Green Card, Green Card, TIPs

Client Resources

May 15, 2017

 

More Posts from this Category

Featured Posts

Biden administration considers migrant restrictions similar to Trump policies.

Asylum rates drop as immigration cases are fast-tracked.

Contact Us

Geygan & Geygan, Ltd.

8050 Hosbrook Road, Suite 107
Cincinnati, Ohio 45236
Tel 513-791-1673
Fax 513-791-1683
info@geygan.com

Disclaimer and Privacy Policy

Lawyer Thomas Geygan | Featured Attorney Immigration

Copyright © 2023 · Enterprise Pro Theme on Genesis Framework · WordPress · Log in