11/22/2006

Unmarried children are eligible for dependent benefits, including green cards, until they turn 21 years old. However, the CSPA (Child Status Protection Act) locks in an age for dependent children. That is, the child is treated as being under age 21 for purposes of immigration benefits in certain circumstances, even though s/he is chronologically over 21 years. If the locked age is less than 21 for an unmarried child, that child is still permitted to obtain the green card as a dependent. With retrogression, however, the final calculation will likely give fewer children the benefit under the CSPA .

Many persons are still in the labor certification stage of the employment-based green card process. When a labor certification is approved, such an individual can file the I-140 petition. Under current law, s/he cannot file the I-485 application unless or until the priority date is current. In this scenario, the child's age will not be locked until the priority date is current. Under the CSPA formula, a child's chronological age at the time the priority date becomes current is reduced by the time the I-140 petition was pending with the U.S. Citizenship and Immigration Services (USCIS). To calculate the time that the I-140 petition was pending, the government subtracts the date the USCIS approved the I-140 petition from the date the petitioner filed the I-140 petition with the USCIS. No other time is counted.

While the example above presents a straightforward answer to whether or not a child can benefit from the CSPA, a more troubling situation may occur if the parent had a labor certification approved at a time when the priority dates were current and then the dates retrogressed. The manner in which the days would be counted is unclear, and there are a number of possible scenarios.

If the parent filed the I-140 and I-485 concurrently when the priority dates were current, and, thereafter, cutoff dates / unavailability occurred, it is not entirely clear that the calculation of whether the child has sought to acquire status is counted from the time the priority date becomes current again. That is, it is not clear whether the one year is calculated from the date the labor certification was approved and the person was initially eligible to file the I-140 petition and I-485 application concurrently. 

Alternatively, the one year may begin at the time the labor certification was approved and the I-485 could be concurrently filed with the I-140 petition, but then stops when the numbers retrogress and resumes when the priority date becomes current again. It is also not clear if the calculation of when the priority dates become current is measured from the first point when the I-140 and I-485 could be filed or from the point when the I-140 is approved. The USCIS and the U.S. Department of State (DOS) will need to provide further guidance on this issue.

 

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