Is the CSPA Controversy Headed for the Supreme Court?

Thứ Năm, 18 Tháng Tám 201100:00(Xem: 47726)
Is the CSPA Controversy Headed for the Supreme Court?
Congress passed the Child Status Protection Act (CSPA) in 2002 to prevent children from becoming separated from their immigrant parents after waiting for many years for their papers to be processed and their priority dates to become current. This law usually applies to F-3 and F-4 cases where a US citizen is sponsoring a family that includes a child over 20 years of age.
 
Before the CSPA, even if a child was an infant when his family was sponsored for green cards, if he turned 21 before his family could immigrate to the U.S., he and his parents faced the possibility of being separated for many years, sometimes forever. The CSPA was enacted in order to promote family unity.


To qualify for CSPA processing, the CIS processing time for an I-130 visa petition can be subtracted from the child’s age on the date that the petition is eligible for visa processing. For example, if CIS took three years to process a petition that you filed for your brother’s family, those three years could be subtracted from the age of your brother’s children who are over 20 years old at the time of visa eligibility.
 
After the CSPA was introduced in 2002, thousands of children over 20 were able to accompany their parents to the US. But, the question remains, what about the over-20 children who do not qualify for the CSPA? This is the question that may have to be answered by the Supreme Court.
 
For most of the time since 2002, if a child was left behind in Vietnam because he did not qualify for the CSPA, the parents filed a new petition for the child after they arrived in the US. However, that new petition received a new priority date, and that means the child had to remain in Vietnam for at least 7 or 8 more years.
 
There was a very brief period when CIS allowed these new petitions to receive the priority date of the parent’s original petition. That eliminated any waiting time and allowed the child to be quickly re-united with his family in the US. However, after a short time, CIS changed its ruling and said that these over-age children had to wait for the parent’s new petition to become current.
 
In some cases now in District Courts, lawyers are arguing that the CSPA law does allow over-21 children to receive the original priority date of their parent’s petition.
 
For example, if a U.S. citizen sponsors her sister and her family for green cards, and the sister's oldest child turns 21 years of age while waiting for the priority date to become current, the lawyers say that the CSPA allows the child to retain the original priority date of the F-4 petition. So, if the original priority date for the parents’ F-4 petition was in 1999, then the petition that they file for their over-21 child would receive the same 1999 priority date. The lawyers say that this satisfies CSPA's aim of insuring the unity of immigrant families.
 
 
So the question for the Supreme Court to answer is this: After the parents arrive in the US, can they file a petition for the over-21 child in Vietnam and get the original priority date of their own petition? In other words, can the petition filed for your nephew or niece or grandchild get the same priority date as the petition that you filed for their parents many years ago? If “yes”, then the new petition would probably be current as soon as it is filed.
 
This matter will not be decided quickly. It could be several years until it comes to the Supreme Court.
 
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Q.1. I filed a petition for my brother and family, including a child who appeared to qualify for CSPA. However, when the family was asked to submit the applications for the interview, they decided not to go. They did not want to leave their child behind in Vietnam. That was two years ago. Recently I contacted the Consulate General in Saigon to ask about the CSPA and they said it was too late to apply it to my case.
 
A.1. The Consulate General was correct. There is a one year limit for the CSPA. In other words, when the petition becomes current, the child has only one year to submit the forms needed for the interview. If this is not done, he loses CSPA eligibility.
 
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Q.2. My 25 year old son did not qualify for CSPA so he had to remain in Vietnam. After I arrived in the US last year, I filed an F2-B petition for him. Now he wants to get married. How will this effect his visa eligibility?
 
A.2. If he marries before you become a US citizen, his F2-B petition will become invalid. You would have to file a new F3 petition after you become a US citizen. The F3 petition would have a new priority date, and a very long waiting time.
 
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