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Visa Retrogression Effect on The Child Status Protection Act

An article that discusses the effect of visa retrogression on the CSPA.

Visa Retrogression occured in January and February of 2011.  For most expecting immigrants, this retrogression has put on hold the dream of reuniting with love ones to happen soon.   As applicants await for the priority dates to move again, President Obama started his urge to Congress for an Immigration Reform.

In the meantime, there is slightly some good news on the effect of retrogression on the Child Status Protection Act (CSPA)*.  In an interview with Mr. Charles Wheeler from the Teleconference held by the CIS Ombudsman’s Office last January 31, 2011, the following scenarios were cited:

“• Applicant has waited more than one year to seek LPR status after the visa became available, and then the visa retrogresses.  That child may not take advantage of the CSPA and visa retrogression is essentially irrelevant.

• Applicant is under 21 using his or her adjusted age and then filed for adjustment of status during the one-year window before visa retrogression.  The subsequent visa retrogression will not affect that child; his or her 2A status is locked in. It does not matter when the visa becomes available again or how long it takes to complete the adjustment process.  The same outcome should occur if the visa retrogressed before the child filed for adjustment, but then became available again during that initial one-year window and the child filed for adjustment before the end of that one year.

• Applicant is under 21 using the adjusted age delays filing for adjustment of status and the visa retrogresses, preventing the child from filing before the one year period has passed.  In that case, USCIS calculates the applicant’s age using CSPA principles on the date the visa becomes available the second time.  If the child is under 21 on that date, he or she has one year from that date to seek LPR status (file for adjustment of status, an immigrant visa, or an I-824 under the agencies’ current interpretations).  Thus, a second one year window opens up on the date the priority date becomes current again, but the applicant’s CSPA age is calculated on that date, not on the date the 2A category first became current.”  Reference: DHA Teleconference January 31, 2011

In a USCIS Memorandum from Donald Neufeld (HQ DOMO 70/6.1 AFM Update AD07-04), Page 6,  it cites:

“Visa Availability Date Regression. If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the officer should retain the Form I-485 and note the date a visa number first became available. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” under paragraph 21.2(e)(1)(ii) using the visa availability date marked on the Form I-485, as long as the I-485 was filed within one year of that visa availability date.If, however, an alien did not file a Form I-485 prior to the visa availability date regressing, and then files a Form I-485 within one year of when the visa availability date again becomes current, the alien’s CSPA age is determined using the subsequent visa availability date.” 

Reference: USCIS Memorandum

In 9 FAM 42.42  Notes of the US Department of State Foreign Affairs, Page 15, it cites:

“9 FAM 42.42 N12.7 Retrogression of Visa Numbers
(CT:VISA-1568; 10-04-2010)

In order to seek to acquire lawful permanent residence an alien beneficiary must actually have one full year of visa availability. If a visa availability date retrogresses (e.g., employment-based third preference numbers are unavailable) or the preference category changes (e.g., F1 converts to F3) within one year of visa availability and the visa applicant has not yet sought to acquire LPR status, then once a visa number becomes available again the one year period starts over. The alien beneficiary’s age under the CSPA is redetermined using the subsequent visa availability date.”

Reference: 9 FAM 42.42

Base from these three references, it can be inferred that as long as the applicant who is either aging out or about to age out for immigration purposes  has sought to acquire lawful permanent residence within one year of his/her priority date becoming first current AND PRIOR to retrogression, that he/she could avail of the benefit of the Child Status Protection Act.  

*The Child Status Protection Act provides a remedy for applicants who would have aged out or turned 21 to still be considered a child for immigration purposes. 

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