An 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.
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.