DOS Issues Revised Cable on Child Status Protection Act

R 170109Z JAN 03
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KHARTOUM
AMEMBASSY KABUL
AMEMBASSY CARACAS

UNCLAS STATE 015049

VISAS - INFORM CONSULS

E.O. 12958: N/A
TAGS: CVIS
SUBJECT: CHILD STATUS PROTECTION ACT: ALDAC #2

REF: (A) 02 STATE 163054  (B) 02 STATE 123775

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SUMMARY
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1.  This cable reiterates/clarifies the main points of the
Child Status Protection Act of 2000 ("CSPA"), limits the
mandatory advisory opinion requirement to a narrow class
of cases, and announces revisions to certain important
aspects of the preliminary guidance set forth in reftel.

2.  Posts should note that the CSPA requires a three-step
process:
--  First, determine whether the CSPA applies.  Under the
revised guidance, the CSPA may apply to any case involving
a petition approved on or after August 6, 2002.  The CSPA
may also apply to certain cases involving petitions
approved before August 6, 2002, but only if either:
(a) the alien aged out on or after August 6, 2002, or
(b) the alien aged out before that date but had applied
for a visa before aging out and was refused under 221(g).
If the petition was approved before August 6, 2002 and the
alien aged out before that date and failed to apply before
aging out (or applied after aging out and was denied on
that basis), then the CSPA would not apply.  If the alien
applied before August 6, 2002 and was refused on any
ground other than 221(g), the case must be submitted for
an advisory opinion.
--  Second, if the CSPA applies to the case, then
calculate the alien's age under the CSPA.
--  Third, in Section 3 (preference and DV) cases, verify
that the alien sought LPR status within one year of visa
availability.  Under the revised guidance, this generally
means that the applicant must submit the completed DS-230,
part 1 (instead of having to file a visa application)
within one year of a visa becoming available.  However, if
the principal applicant adjusted to LPR status in the U.S.
and the derivative seeks a visa to follow to join, then
the law shall be interpreted to require generally that the
principal have filed a Form I-824 for the derivative
within one year of a visa becoming available.

3.  Posts should also note the following:
--  Under the revised guidance, K-4 applicants (like V
applicants) cannot benefit from the CSPA.
--  Aliens who would convert to IR-2 status from F1 as a
result of the CSPA may opt out of that conversion, which
would allow them to bring in children as F1 derivatives.
END SUMMARY

-------------------------------------
How to Approach a Potential CSPA Case
-------------------------------------

4.  Ref A Aldac has generated numerous queries, and
Department has reconsidered some of its preliminary
guidance.  Accordingly, Department is providing further
clarification of the CSPA rules.

5.  Depending on the visa category, there are two or three
basic steps to approaching a CSPA case:
--  First, apply the rules in Section 8 of the CSPA to
determine whether the CSPA applies to the case.  (See
paras 6-11 below.)
--  Second, if the CSPA applies, calculate the alien's
age, using the age formula in either CSPA Section 2 (for
unmarried offspring of Amcit petitioners) or CSPA Section
3 (for preference and DV cases).  (See paras 12-14.)
--  Third, if the case is a Section 3 (preference or DV)
case, verify that the alien has sought LPR status within
one year of visa availability.  (See paras 15-25.)

-------------------------------------------
Step One:  Does the CSPA Apply to the Case?
-------------------------------------------

6.  The CSPA went into effect on August 6, 2002.  The law
applies to immigrant visa cases initiated after that date
but has a somewhat more limited applicability to cases
that were already in progress on the day the law went into
effect.  CSPA Section 8 defines which cases are covered by
the CSPA.  As stated in paragraph 17 of Ref A, Section 8
provides that the CSPA applies to cases where either:
--  the petition was filed after 8-6-02; or
--  the petition was filed before 8-6-02 and was still
pending (i.e., not yet approved) on that date; or
--  the petition was approved before 8-6-02, but only if a
final determination had not been made on the beneficiary's
application before that date.

7.  Most of the cases posts are likely to see in the first
few years, at least in the family-based preference
category, are cases in the third group -- in which the
petition was approved before 8-6-02.  It is important that
as a threshold matter, posts closely examine such cases to
determine whether the CSPA would even apply to the case.

8.  Paragraph 17 of Ref A advised that on a preliminary
basis, Department would interpret CSPA Section 8 to mean
that beneficiaries whose petitions had been approved prior
to 8-6-02 could not benefit from the CSPA unless the
beneficiary actually filed an immigrant visa application
before 8-6-02 and no "final determination" had been made
on that application.  This preliminary interpretation has
since been refined.  Under the revised interpretation, if
the petition was approved before 8-6-02, then the CSPA
will not apply unless either:
(a) the alien aged out on or after 8-6-02, or
(b) the alien aged out before 8-6-02 but, prior to aging
out, had applied for an immigrant visa and was refused
under 221(g).

9.  If the petition was approved before 8-6-02 and the
alien aged out before that date and either failed to apply
for a visa or applied after aging out and was refused on
that ground, then the CSPA would not apply.  If the alien
applied before August 6, 2002 and was refused on some
other ground besides age-out or 221(g) grounds but that
refusal ground has been overcome/waived (such as an
overcome 212(a)(1), 212(a)(4), 212(a)(5) refusal, or a
212(a) refusal that was subsequently waived), then the
case should be submitted to CA/VO/L/A for an advisory
opinion.  (If the alien was refused on a ground that has
not been overcome or waived, then the alien could not
qualify for a visa anyway, regardless of whether the
alien's age would be under 21 under the CSPA, and
therefore there would be no need to submit an AO request
on the CSPA issue.)

10.  NOTE:  In determining whether an alien aged out
before or after August 6, 2002, post should keep in mind
that the special 45-day Patriot Act rules discussed in Ref
B Aldac still apply.  Under those rules, if the alien is
the beneficiary of a petition filed before Sep. 11, 2001,
the alien remains eligible for child status for 45 days
after turning 21.  For example, an alien who turned 21 on
August 5, 2002, but who was the beneficiary of a petition
filed before Sep. 11, 2001, would not actually age out
until 45 days after the alien's 21st birthday, i.e., on
September 19, 2002.  Therefore, even though the alien in
this example turned 21 before the CSPA went into effect on
August 6, 2002, the alien did not age out until after that
date, and therefore the CSPA would apply to that alien's
case, regardless of whether or not the alien had filed an
immigrant visa application before August 6, 2002.

11.  Posts should note that whether the alien aged out
before or after 8-6-02, and whether the alien applied for
a visa before 8-6-02, are only relevant if the petition
was approved before 8-6-02.  If the petition was approved
on or after 8-6-02, then the CSPA may be applied to the
case, even if the alien aged out before 8-6-02 or even if
the alien did not apply for a visa before 8-6-02.

---------------------------------------------------------
Step Two:  Assuming the CSPA Applies, Does the Alien's Age
Come Out to Be Under 21, Using the CSPA Formulas?
----------------------------------------------------------

12.  The following is a simplified summary of how to
calculate the alien's age in cases where the CSPA has been
found to apply:

CSPA Section 2 Cases:

--  For IR-2/3/4:  Age is determined using the age the
alien had on the date the petition was filed.  (As noted
in reftel, the CSPA would very rarely be of practical use
in IR-3/-4 orphan cases.)

--  For F2 Principal Cases Where the Petitioner
Naturalizes and the Applicant Could Convert to Either IR-2
or F1:  Age is determined using the age the alien had on
the date the petitioner naturalized.

--  For F3 Principal Cases Where the Applicant Divorces
and the Applicant Could Convert to Either IR-2 or F1:  Age
is determined using the age the alien had on the date of
the divorce.

CSPA Section 3 Cases:

--  For Principals in F2A Cases, and For Derivatives in
Preference and DV cases:  Age is determined by taking the
age of the alien on the date that a visa first became
available (i.e., the date on which the priority date
became current and the petition was approved, whichever
came later) and subtracting the time it took to adjudicate
the petition (time from petition filing to petition
approval).

--  Department recognizes that this is a somewhat
complicated formula.  To assist posts in applying the
formula, a worksheet for calculating the alien's CSPA age
in Section 3 preference cases is appended at the end of
this Aldac.  (Paragraph 15 of Ref A contains the special
rules for calculating the age of derivatives in DV cases.
Posts are reminded that DV visas cannot be issued after
the end of the fiscal year, regardless of whether a
derivative might benefit from age-out protection under the
CSPA.)

13.  If posts need to determine the date on which a
particular priority date first fell within the cut-off
date for purposes of determining what the alien's age was
on the date the case became current, posts should refer to
their monthly Visa Bulletin files, or may access this
information through the CCD - go to http://CADATA.CA.STATE.GOV, then go to the "Public" tab
and scroll down to the "IV Cutoff Dates by Visa Class" and
enter a post code and a time period.  If post's records or
this on-line site do not have the necessary information,
posts may contact CA/VO/F/I for further assistance on
historical movement of cut-off dates.

14.  It is important to note that once it is determined
that CSPA applies and the alien's age is determined, the
alien's age does not change.  The alien retains the same
age throughout the pendency of the case.  (While the CSPA
may prevent the alien's age from changing, the alien must
of course still meet the other criteria for "child"
status, including being unmarried, and therefore if the
alien marries, the alien will lose "child" status, even
though the alien's age, for immigration purposes, may be
under 21 as a result of the CSPA.)

----------------------------------------------------
Step 3 (For Preference and DV Cases Only):  Did
the Alien "Seek LPR Status" (i.e., Submit the
DS-230, Part I) Within One Year of Visa Availability?
-----------------------------------------------------

15.  As noted in Ref A, preference and DV applicants
cannot benefit from the special age-out rules in the
recently enacted CSPA unless, in the words of the statute,
they have "sought to acquire the status of an alien
lawfully admitted for permanent residence" within one year
of a visa becoming available.  (As explained in Ref A, a
visa number is considered to become available when the
petition has been approved and the priority date is
current, whichever comes later.)

16.  Paragraph 12 of Ref A stated that for the purposes of
this rule, an applicant would be considered to have
"sought to acquire [LPR] status" on the date of the visa
application, meaning that a preference or DV applicant
could not benefit from the CSPA unless the alien filed a
visa application within one year of a visa becoming
available.  However, concerns have since surfaced that
difficulties experienced by the applicant in obtaining or
adequately completing required documents or government
delays in scheduling appointments for applications may
prevent an applicant from applying for an immigrant visa
within one year of visa availability, thereby causing the
alien to be denied the benefits of CSPA age-out protection
through no fault of his/her own.

17.  To address this concern, Department has reconsidered
its preliminary interpretation and has decided that, in
cases where the principal applicant's case goes through
visa processing rather than adjustment of status, a better
interpretation would be to measure the date on which the
applicant first seeks to acquire LPR status as the date on
which the applicant submits the completed DS-230, Part I.
Therefore, if a preference or DV visa applicant submits
the DS-230, Part I within one year of visa availability,
then the applicant would be eligible for CSPA benefits,
assuming the CSPA otherwise applies to the case.  (Note:
In older cases that pre-date the creation and use of the
DS-230 Part I, posts may look to predecessor versions of
or precursors to the DS-230 Part I, such as the OF-230
Part I or the old OF-179 Biographic Data Sheet for Visa
Purposes.)

18.  Section 3 expressly requires that the alien seeking
CSPA benefits take the necessary steps to seek LPR status
within the one-year time frame.  In cases involving
derivatives, it is not enough that the principal may have
taken the required steps within the one-year time frame --
the derivative him/herself must have taken those steps (or
the principal must have taken the required step
specifically for the derivative, acting as the
derivative's agent).  Therefore, if the applicant seeking
CSPA benefits is a derivative, then the determining factor
is the submission of a completed DS-230, Part I, that
specifically covers the derivative.  The submission of a
DS-230 Part I that covers the principal will not serve to
meet the requirement.

19.  Similarly, derivative applicants seeking to follow to
join a principal who was already issued a visa are
required to establish that a DS-230 Part I was sent
specifically for them (not for the principal) within one
year of visa availability.  In cases where no record of
the case exists at post, it would be the applicant's
burden to establish that this requirement was satisfied.
The principal alien's A file at INS may contain some
documentation relevant to this issue (e.g., an OF-169
signed by the principal applicant but expressly listing
the derivative's name as one of the family members
intending to immigrate).  It would be the alien's burden
to present such evidence.

20.  If it has been established that a DS-230 Part I was
specifically submitted for an alien seeking CSPA benefits,
posts must then verify that the Form was submitted within
one year of visa availability.  To determine the date on
which the alien submitted Part I of the DS-230, post may
normally refer to the "OF-230 P1 Received" date recorded
in the IV system.  If a DS-230 Part I was in fact
submitted for the alien seeking LPR benefits and the
submission date in the IV system is less than a year after
visa availability, then the alien normally will have
satisfied the requirements of Section 3 and may benefit
from the CSPA, absent evidence that the response date
related only to the principal and that the DS-230 Part I
for the derivative was submitted at some later time
subsequent to the principal's response to Packet III.  On
the other hand, if the DS-230 Part I response date is more
than a year after visa availability, then the alien
normally would not be eligible for Section 3 CSPA
benefits, unless the alien can show that he/she actually
made the submission at an earlier date that was within one
year of visa availability.

21.  Since Packet III (now referred to as the Instruction
Package for Immigrant Visa Applicants) is sent out when
the priority date falls within the qualifying date, there
will be cases when the applicant actually submits the DS-
230, Part I before the priority date is current, i.e.,
before a visa has even become available.  Any case in
which the applicant's DS-230, Part I is received before
the priority date is current would necessarily meet the
requirement that the alien seek LPR status within one year
of a visa number becoming available.

22.  The requirement that the preference or DV applicant
submit the DS-230, Part I within one year of visa
availability shall apply only in cases where the principal
applicant was processed for a visa at a consular post
abroad.  If the principal applicant adjusted status in the
U.S. and a derivative is applying for a visa abroad to
follow-to-join, then the date on which the derivative will
be considered to have sought LPR status for purposes of
satisfying CSPA Section 3 will generally be the date on
which the principal (acting as the derivative
beneficiary's agent) filed the Form I-824 that is used to
process the derivative's following to join application.
Therefore, in cases involving a derivative seeking to
follow to join a principal who adjusted in the U.S., the
derivative can benefit from the CSPA if the principal
filed a Form I-824 for the beneficiary within one year of
a visa becoming available (i.e., within one year of the
case becoming current or petition approval, whichever is
later).  The instructions to Form I-485 (the adjustment
application) advise aliens adjusting status in the U.S.
who have derivatives abroad to file a Form I-824 for such
derivatives, and the I-485 Form indicates that that Form
I-824 can be filed simultaneously with the Form I-485
adjustment application.  Therefore, the date on which the
I-824 is filed may be the same date that the principal
filed the I-485 adjustment application.

23.  As there are other ways to initiate a following-to-
join case besides the filing of an I-824, it may be
possible for a derivative alien to satisfy the one-year
time limit for seeking LPR status in other ways.  If posts
encounter cases involving derivatives following to join an
adjusted principal who have not had an I-824 filed on
their behalf within the required time frame but who have
taken some other concrete step to obtain LPR status for
themselves within the one year time frame, posts should
submit such cases to the Department (CA/VO/L/A) for an
advisory opinion.

24.  Posts should keep in mind that the mere fact that an
alien satisfies the requirement of seeking LPR status
within one year of visa availability does not/not mean the
alien has not aged out.  Rather, it simply means that the
alien is potentially eligible for CSPA treatment.  Posts
must also verify that the CSPA applies to the case (see
paras 6-11 above), and, that the alien's CSPA age
equivalent is under 21 (see paras 12-14 above).

25.  Posts are also reminded that the CSPA requirement
that the alien seek LPR status within one year of a visa
becoming available applies only to preference and DV
cases.  (It has little practical effect in DV cases, given
the requirement that DV cases be processed within one
fiscal year.)  The requirement does not apply to IR
applicants, and therefore the date that an IR applicant
submits the DS-230, Part I, is not relevant to CSPA
applicability.

---------------------------------------------
Mandatory Advisory Opinion No Longer Required,
Except in Limited Cases
---------------------------------------------

26.  Paragraph 13 of Ref A instructed posts to seek
advisory opinions from CA/VO/L/A in all cases that fall
within section 3 of the CSPA.  The Department is changing
this policy.  Because the guidance in this Aldac is
sufficiently detailed for posts to process these cases,
advisory opinions are no longer required in CSPA cases,
except as noted in paras 9 and 23 above.  Other than in
the narrow classes of cases referred to in those
paragraphs, posts may accord CSPA benefits in any case in
which the conoff finds the alien eligible for such
benefits, according to the guidance provided above,
without the need for an advisory opinion.

27.  However, if post has any questions about the
applicability of the CSPA in a particular case, Department
(CA/VO/L/A) welcomes voluntary advisory opinion requests.
Any such requests must have, at a minimum, the following
information:
-- the alien's date of birth;
-- the immigrant visa category;
-- whether the alien is a principal or derivative;
-- whether the petitioner naturalized and if so, the date
of naturalization;
-- the alien's marital status and, if ever married, the
dates of marriage and dates of divorces;
-- the date the petition was filed;
-- the date the petition was approved;
-- the date the priority date became current;
-- the alien's age on the date that a visa became
available (i.e., age on date of petition approval or on
date priority date became current, whichever is later);
-- the date the alien submitted the DS-230 Part I (or, in
following to join adjustment cases, the date the adjusting
principal filed the I-824);
-- the date(s) the principal and relevant derivative alien
applied for the IV;
-- If any IV application(s) were made prior to the
effective date of the CSPA, the outcome of the prior
application(s).

-------------------------------
Correction to Example in Reftel
-------------------------------

28.  Department would also like to clarify some confusion
engendered by a typographical error in an example provided
in the portion of Ref A relating to Section 6 of the CSPA,
which addresses the problem currently encountered by
Filipino applicants whose parents naturalize.  Automatic
conversion from F2B to F1 status can disadvantage an
applicant in these circumstances due to the less favorable
cut-off dates for Filipino F1s.  To illustrate how
automatic conversion usually benefits an applicant whose
parent naturalizes, paragraph 20 of reftel described a
case involving a "14 year-old" unmarried French applicant.
This, however, was a typographical error.  The age that
was supposed to be used in the example was 24, not 14.
Section 6 would have no relevance to a case involving a 14
year old, since a 14 year old whose parent naturalizes
would convert from F2A to IR-2, not F2B to F1, and the
child's case would be current as a result of the
conversion.

--------------------------------------------------------
Can an Alien Opt Out of Section 2 CSPA Age-Out Benefits?
--------------------------------------------------------

29.  Some posts have noted that an IR-2 who aged out and
converted to F1 and who now benefits from the special age
out rules in Section 2 of the CSPA may prefer not to
convert back to IR-2 category.  Specifically, F1 aliens
with children may prefer to remain F1s so that their
children can accompany them to the U.S. as F1 derivatives.
That would not be possible if the alien's case were
converted to IR-2 because IR-2s cannot have derivatives.

30.  Although there is an opt out provision in Section 6
of the CSPA for F2Bs who do not wish to convert to F1 upon
the petitioner's naturalization, there is no express opt
out provision in the CSPA for aliens who would prefer to
remain F1s rather than converting to IR-2 under the
special age-out protection rules in CSPA Section 2.
However, in Department's view, such aliens may still be
processed as F1s, but only if the alien's priority date
falls within the F1 cut-off date.

------------------------------------
CSPA Does Not Apply to Vs or to K-4s
------------------------------------

31.  Department has reconsidered the guidance in reftel
and has concluded that the CSPA would not, repeat, not
apply to K-4 applicants.  Although it may make practical
sense to allow such aliens to benefit if an IR-2 petition
has been filed on their behalf, under the literal language
of the statute the CSPA applies only to the immigrant visa
categories specified in the statute and the law does not
contain a provision allowing for application to K-4 or
other nonimmigrant visa cases.  Therefore, in Department's
view, we do not have the discretion to apply the law to K-
4s, absent a legislative amendment.  As indicated in
reftel, the CSPA also does not apply to V visa applicants,
even though they are also beneficiaries of an F2A
petition.  However, both Vs and K-4s can benefit from the
CSPA at the time they ultimately apply for IR-2 or F2
immigrant visas.

------------
Cases at NVC
------------

32.  As noted in reftel, Department is working with NVC to
identify cases at NVC that appear to meet the criteria for
CSPA and which now should be forwarded to post as F1 cases
that have converted back to IR-2 or F2B cases that have
converted back to F2A.  Per reftel, posts should make a
similar effort to identify cases that can benefit from the
CSPA, such as cases where derivatives were recently denied
or removed from cases as over-aged or petitions that had
been converted to noncurrent F1 and F2B cases which may
now be converted back to IR-2 or F2A cases again.

-------------------------------------------------------
Sample Worksheet for Calculating Age in Section 3 Cases
-------------------------------------------------------

33.  The following is a sample worksheet that may be
useful in calculating age in Section 3 cases (for
principals in F2A cases, and for derivatives in all
family-based and employment-based preference categories):

1.  Alien's Date of Birth:
2.  Date Petition Filed:
3.  Date Petition Approved:
4.  Length of Time Petition Pending (#3 minus #2):
5.  Date Petition Became Current:
6.  Date Visa Became Available (Later of #3 or #5):
7.  Age of Alien on Date Visa Became Available
(#6 minus #1):
8.  Age for CSPA purpose: Age at time Visa Became
Available minus Length of Time Petition Pending
(#7 minus #4):

CAUTION: Only apply the Age in #8 if both:
1.  The alien returned the completed DS-230, Part I,
within one year of visa availability (or an I-824 was
filed on the alien's behalf within that time frame, in
cases involving a derivative following to join a principal
who adjusted in the U.S.);
        and/and
2.  Either:
(a) the petition was not yet approved on Aug 6, 2002, or
(b) the petition was approved before that date but the
alien seeking CSPA benefits either (i) aged out on or
after that date or (ii) aged out before that date but,
before aging out, applied for an immigrant visa and was
refused under 221(g).

34.  Minimize considered.
POWELL

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