The Child Status Protection Act, or “CSPA”, signed into law on August 6, 2002, “addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of CIS processing delays. Prior to this new legislation, in order for an individual to immigrate as a “child” under the immigration laws, the application for adjustment of status or for an immigrant visa must have been acted upon and immigrant status granted before the child’s 21st birthday. Because of enormous backlogs and processing delays, however, many children turned 21 before the CIS adjudicated the requisite petition or application. In such cases, the child “aged-out” and was ineligible to receive an immediate relative visa or was no longer considered to be a derivative “child” on his or her parent’s application. The child’s petition was either automatically moved to a lower preference category or the child was required to submit his or her own petition, resulting in years of delays and possible ineligibility.” (CSPA summary provided by the American Immigration Lawyers Association (AILA)).
Despite the Congressional intent behind the law, the Department of State and CIS have tended to narrowly interpret the statute (with DOS even going so far as to contradict the black letter law in certain cases, such as not considering cases where the Beneficiary aged out before August 6, 2002). The Board of Immigration Appeals (BIA) held in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) that the automatic conversion and priority date retention provisions of the Child Status Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner (e.g., you are a U.S. citizen and filed a visa petition for your sister in the Philippines in 1988. The petition is now current, but her son aged out. Under the spirit and letter of the law, your sister should be able to file a new visa petition for her son once she becomes a permanent resident, and he can retain his 1988 priority date. The BIA disagrees with this). This is, again, contrary to the black letter of the law. I was happy to find this blog article that confirms my thoughts. I’m still waiting for someone to confirm my thoughts behind the congressional intent of Requests for Humanitarian Reinstatement and the Substitute Sponsor law.
For more information on my practice and to learn how I’ve helped other families, please visit my website at http://www.alanoimmigrationlaw.com.