A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, July 18, 2014

New Policy on Late CSPA Filings

On June 6, 2014, USCIS issued a new interim policy memo on the treatment of late filings under the Child Status Protection Act (CSPA). The policy memo explained what constitutes "extraordinary circumstances," for the purposes of excusing late filings under CSPA. Applicants whose cases were previously denied due to failure to file within the one-year filing window may also file motions to reopen their cases.

The Child Status Protection Act (CSPA) is a special law that allows over-aged immigrants to be treated as minor children for certain immigration benefits, even though their actual ages are over 21.  However, to take advantage of the CSPA, one must must "seek to acquire"  permanent residence status within one year from the date her priority date becomes current.

According to the new policy memo, an aged-out applicant must file an application for adjustment of status (Form I-485), an application for action on approved  petition (Form I-824), or an application for immigrant visa (Form DS-230) within one year.  Merely contacting a lawyer does not meet the "seek to acquire" requirement.

A recent Board of Immigration Appeal (BIA) decision held that USCIS has discretionary power to excuse late CSPA filings due to extraordinary circumstances.  Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).  The new policy memo explains that adjudicators, when deciding whether late filings should be excused, must decide whether extraordinary circumstances exist on a case-by-case basis and consider the totality of circumstances.

According to the policy memo, an adjudicator should excuse late filing if (1) The circumstances were not created by the individual's own action or inaction; (2) The circumstances were directly related to the failure to act within the one-year period, and (3) The delay was reasonable under the circumstances.

Specifically, valid reasons justifying late filings under CSPA include, but are not limited to: serious illness or mental or physical disability during the one-year period; legal disability (such as mental impairment); ineffective assistance of counsel;  timely filing rejected by the USCIS which was followed by a corrected filing within a reasonable time; and death or serious illness or incapacity of legal representative or immediate family member.  Other less compelling reasons such as financial difficulty, minor medical conditions, and circumstances within the alien’s control are not considered extraordinary.

Finally, the policy memo also allows applicants to file motions to reopen cases that were denied after the June 8, 2012 BIA decision solely based on late filings of applications.  Such motions should include evidence establishing extraordinary circumstances based on the new policy memo.

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