CSPA and USCIS Interpretation Problems

I was representing a client at her green card interview at USCIS (U.S. Citizenship and Immigration Services) earlier this week.  With this client of mine, we had filed her I-130 visa petition before her I-485 green card adjustment of status application to preserve her rights under the Child Status Protection Act (CSPA).  During the course of the interview, it struck me as to how little some USCIS officers have a grasp of the law and how they are misinterpreting it.

As you may know, CSPA preserves a qualifying child’s age at under Twenty One, so that the child does not “Age Out.”  In the past, children who aged out either completely became disqualified if in a derivative category or fell into a lower visa category where they would have to wait years more to obtain their green cards.  CSPA was designed to soften the harsh effects of aging out.  However, CSPA has many loopholes and is still clearly difficult for many USCIS officers to understand and implement.

My case involved the simplest category of CSPA:  a child of a U.S. citizen(an immediate relative of a U.S. citizen).  As a general rule, the CSPA freezes the age of a child of a United States citizen (USC) on the date that the USC parent files an I-130 visa petition for the child (or the date on which an immediate relative files a self-petition under VAWA).  This is the easiest calculation of all:  how old was the child on the date the U.S. citizen parent filed the I-130?  If under 21, you are protected under CSPA.  This is not the dreaded Derivative category.  In the Derivative category, say your U.S. citizen uncle files for your father.  Your father is the main beneficiary and you would be the derivative beneficiary.  Under this nightmarish CSPA scenario, a derivative beneficiary’s age will freeze as of the date that a visa number becomes available for the petition in question reduced by the number of days that the petition was pending, but only if the child seeks to acquire the status of an LPR within one year of the date the visa became available.  That is a difficult calculation!

In my case, I had filed the I-130 petition on May 24, 2011.  My client turned 21 on June 9, 2011.  Simple case, right?  Not exactly.  Our interviewing officer first stated that, since we filed the I-485 after my client turned 21, CSPA would not attach.  I replied that the I-485 filing date is irrelevant to an immediate relative of a U.S. citizen.  The officer was clearly confusing the Derivative and Immediate Relative CSPA calculations.  I asked for the supervisor. 

The supervisor eventually came out and right away stated that my client is not protected under CSPA and pointed to a numerical chart he had just created.  I then discussed with the supervisor what is the exact law to apply.  We agreed that this is an immediate relative case.  But, even with agreement on the proper standard, the supervisor still felt my client did not qualify.  From looking at his chart, it became obvious that the supervisor had made arithmetic errors!  I then proceeded with a decade by decade calculation of my client’s age for the supervisor.    This is how the conversation went:  my client was born June 9, 1990.  She was 10 on June 9, 2000.  She was 20 on June 9, 2010 and 21 on June 9, 2011.  We filed the I-130 in May 2011.  A light bulb went off and USCIS then approved my client’s case.

CSPA is difficult.  However, it seems disconcerting that even with a basic CSPA issue, some USCIS officers have problems interpreting and applying its provisions.