Practical Guide to the Child Status Protection Act (CSPA) - Part 4

Children of Asylees and Refugees

Under the CSPA, the unmarried child of an alien who was granted asylee or refugee status may be granted the same status if accompanying or following-to-join the parent. The age of the child shall be frozen on the date on which such parent applied for asylum or refugee status. This means that if the child was below 21 years old on the date his parent applied for asylum or refugee status, he will remain classified as a dependent child of his parent even if he turned 21 years old during the processing of the asylum or refugee case.

In its latest memorandum regarding the applicability of CSPA to children of asylees and refugees, the USCIS declared that a derivative applicant eligible for continued classification as a child under the CSPA shall be considered a child for all related asylum or refugee eligibility determinations.

If the child is included in an asylum or refugee application, continued eligibility for derivative status is determined based on the child’s age at the time the parent filed the Form I-589, Application for Asylum and Withholding of Removal, or Form I-590, Registration for Classification as Refugee.

According to the USCIS memorandum, if the child is under 21 years old on the date the parent filed either the Form I-589, Application for Asylum and Withholding of Removal [i.e., age based on date the USCIS received the Form I-589] or the Form I-590, Registration for Classification as Refugee [i.e., age based on date the parent is first interviewed by the USCIS], he will remain classified as a dependent “child” of his parent even if he turns 21 years old during the processing of the asylum or refugee case, provided his name is listed as a derivative child on the application before a final decision is made on it.

Please note that there is conflict between the USCIS memorandum and the instruction for Form I-730, Refugee/Asylee Relative Petition. While the USCIS memorandum only requires the parent to list the child on the application before a final decision is made on it, the instruction for Form I-730 requires the parent to list the child on the application before the child turns 21 years old and before the application is adjudicated.

According to the instruction for Form I-730, Refugee/Asylee Relative Petition, “in order to be considered a derivative child, the principal alien must have listed the child on Form I-589, Registration for Classification as Refugee, as appropriate, prior to the derivative’s 21st and prior to adjudication of the application.”

Illustration: Pedro was 20 years old on the date his mother, Maria, filed her application for asylum with the USCIS. By the time Maria added his name to the pending application, Pedro was already 22 years old.

According to the USCIS memorandum, Pedro will still be considered as a dependent child of Maria even though he was already 22 years old when his name was added to the application since his age was locked in or frozen on the date Maria filed her application with the USCIS and his name was added before a final decision was made on the case.

As per instruction for Form I-730, Refugee/Asylee Relative Petition, however, the CSPA does not apply to the case because even though the case was still pending when Pedro’s name was added to the application, Maria failed to list Pedro’s name on the application before he turned 21 years old.

A child not included in the asylum or refugee application may still follow and join his parent as a derivative beneficiary or as a child dependent of his parent provided the parent files a Form I-730, Refugee/Asylee Relative Petition, within 2 years of the date said parent was granted asylum or was admitted as a refugee to the United States. The 2-year limitation may be waived by the USCIS for humanitarian reasons.

CSPA coverage for children of asylees and refugees

According to the USCIS memorandum, a derivative applicant is generally eligible for continued classification as a child if one of the following conditions is met:

• The parent’s application for refugee/asylum status was pending on or filed after August 6, 2002, and the derivative was under the age of 21 at the time of filing; or
• The Form I-730 from which the derivative is benefiting was pending on August 6, 2002, and the derivative was under the age of 21 at the time the I-730 was filed; or
• The parent’s application for refugee/asylum status or the I-730 was filed prior to August 6, 2002, and the derivative turned 21 years of age on or after August 6.

Retention of priority date

The law states that if a derivative child is determined to be 21 years old or older under the CSPA when the visa number of the parent becomes available, the petition shall automatically be converted to the appropriate category and the child shall retain the original priority date issued upon receipt of the original petition.

The Supreme Court and the BIA narrowly interpreted this provision of the CSPA. As per their interpretation, it applies only to direct or derivative beneficiary children in immigrant petitions filed by lawful permanent resident parents under the F-2A category, and does not apply to derivative beneficiaries in the other family-based categories, employment-based categories, and diversity visa applications.

Illustration: Pedro, a lawful permanent resident, filed an immigrant petition in behalf of his unmarried minor daughter, Maria. Maria was 20 years old on the date the petition was filed in her behalf. A few months later, Maria aged-out or turned 21 years old. There is no need for Pedro to file a new petition in behalf of Maria. Maria’s case will automatically be converted from F-2A category to the F-2B category.

Revocation of upgrade of petition from F-2B to F-1

When a lawful permanent resident parent who has a pending immigrant petition on behalf of an unmarried child under the 2nd preference family-based category or F-2B category becomes a naturalized citizen of the United States, the preference category is automatically upgraded by operation of law from F-2B category into the 1st preference family-based category or F-1 category.

Prior to the enactment of the CSPA, this automatic upgrade caused problems to beneficiaries who were born in the Philippines because the waiting time for visas to become available in the F-1 category for that particular country is usually longer compared to the waiting time for visas to become available in the F-2B category for that country.

For example, Pedro, a lawful permanent resident who had a pending petition under the F-2B category for his unmarried daughter, Maria, became a naturalized citizen on April 15, 2002, a few months before the enactment of the CSPA on August 06, 2002. As a result of his naturalization, the preference category of the case of his Philippine-born daughter was automatically upgraded from F-2B category into the F-1 category.

According to the Visa Bulletin for the month of April 2002, the cut-off date as of April 01, 2002 for the F-1 category [Philippines] was December 01, 1988 while the cut-off date for the F-2B category [Philippines] was August 08, 1993. You will note based on the cut-off dates given that the waiting time for visas to become available in the F-1 category at that time was about 14 years compared to only about 9 years for the F-2B category. Pedro’s daughter, Maria, had to wait for 5 more years for visas to become available to her case since her preference category was automatically transferred from F-2B category to the F-1 category.

Congress recognized this issue when they passed the CSPA in 2002. The legislators remedied the situation by including a provision in the CSPA that gives the unmarried son or daughter the ability to request that his or her preference category not be automatically upgraded from F-2B category into the F-1 category.

Because of the CSPA, beneficiaries like Maria now have the option to write the government and request that their preference category not be upgraded from F-2B category into the F-1 category if staying in the F-2B category will be more beneficial to them. Once the written request is received, the USCIS will process the case as if the petitioner never became naturalized as a United States citizen and the case never left the F-2B category.

This CSPA remedy may be availed of not only by beneficiaries who originally belonged to the F-2B category. Even beneficiaries who originally belonged to the F-2A category, but whose cases were transferred to the F-2B category when they turned 21 years old, may avail of this remedy as long as they were already 21 years old when their petitioners became naturalized citizens of the United States.

In summary, one may benefit from this CSPA remedy provided that the following requisites concur:

• Lawful permanent resident parent has a pending immigrant petition on behalf of an unmarried child under the F-2B category;
• The petitioner becomes a naturalized citizen of the United States;
• The waiting time for visas to become available in the F-1 category is longer compared to the waiting time for visas to become available in the F-2B category; and
• The beneficiary writes the government and requests that his preference category not be upgraded from F-2B category into the F-1 category since staying in the F-2B category will be more beneficial to him.

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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios. He has more than 20 years of experience and a successful track record in handling CSPA cases, waiver cases, humanitarian reinstatement cases, employment-based and family-based petitions, PERM and naturalization applications, as well as other types of immigration applications.

If you want to know more about this topic, then we invite you to schedule an appointment for your free initial office consultation by calling us at (626) 331-8188.

The above article does not and is not intended to constitute legal advice for a specific immigration problem, and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.

Copyright 2022. Law Offices of Eugene M. Palacios. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without prior written permission from the author.