3/7/2007

Recently, the Board of Immigration Appeals handed down a very important decision for those whose I-130 petition was filed by a U.S. parent and "approved before 08/06/2002," but he or she reached 21 years of age before 08/06/2002, and failed to file I-485 application with or without good cause before 08/06/2002. Until the decision, the USCIS has been denying I-485 applications filed by such alien beneficiary after August 6, 2002 on the ground that the alien is not eligible for the Child Status Protection Act (CSPA) after reaching 21 years of age.

The ruling overtuned such practice of the USCIS, stating that 

1) once the I-130 immediate relative petition was approved on or before the child reached 21 years of age and 

2) the child reached 21 years of age on or before August 6, 2002, even if the child failed to file I-485 application for whatever reasons before August 6, 2002, the child is eligible to file I-485 application any time after August 6, 2002, still as a child under 21 years of age, no matter how late it is.

In the case of issue, the U.S. citizen parent'sI-130 petition was approved on November 1, 1996 and the beneficiary aged out on August 4, 1997, but for the unknown reasons, he/she did not file I-485 application until October 15, 2003, more than one year after the alleged cut-off date of August 6, 2002. 

The BIA has ruled today that once the immediate relative petition for a child under 21 years of age by a U.S. parent is approved and the child reached 21 years of age before August 6, 2002, the former child beneficiary is still eligible for I-485 green card application any time as a child under 21 year of age and not subject to limitation of immigrant visa. 

Of course, the beneficiary must prove that the child is admissible at the time of filing of I-485 application other than the "overstay" (out of status) or "unauthorized employment" in the U.S. The immediate beneficiary "child" of a U.S. citizen is eligible for adjustment of status to a permanent resident even if the beneficiary is out of status or engaged in unauthorized employment. Other than that, the law does not waive the grounds of inadmissibility including serious criminal convictions.