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CSPA Protection, Sought to Acquire Rule

By January 13, 2022Immigration
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My mother was petitioned for a green card, and I was included as a derivative beneficiary, but now I am being told that I cannot apply for a green card because I aged out and I failed to apply for my green card within one year of being eligible to apply for the green card. Is there anything I can do to reopen the window to apply for my green card?

Based on the facts of your case it appears that you were benefiting from an immigration rule known as the Child Status Protection Act, (CSPA). CSPA benefits minors that have been petitioned for a green card as direct beneficiaries or derivative beneficiaries by allowing a discount of the beneficiary’s age when the beneficiary has aged out of a preference-based category as a direct beneficiary or has aged out of being a derivative beneficiary as a result of reaching the age of 21 years. This discount is based on the time period it took the immigration service, (USCIS) to process the initial immigrant petition and discounting the age of the beneficiary by the processing time period. You can view a more detailed explanation about the CSPA rule by clicking the link here.

A significant rule to be aware of affecting CSPA eligibility is the “sought to acquire” rule which indicates that when the beneficiary’s priority date is current which means that there is a visa available allowing for the beneficiary to proceed to step two of the process to apply for the green card, the green card beneficiary has one year to start that second step application process for the green card.

The “sought to acquire” rule is satisfied by:

  • Properly filing the form, I-485 which is the application to file for the green card when the beneficiary is present in the United States.
  • Submitting a completed Immigrant Visa Application, Online Form DS-160 with the Department of State in cases where the beneficiary is applying for the green card abroad through the process known as consular processing.
  • In consular processing cases, paying the immigrant visa fee to the Department of State.
  • In consular processing cases, paying the affidavit of support fee for form I-864 to the Department of State.
  • Filing an application to have USCIS take action on an approved immigrant petition, known as form, I-824.

Failing to take any of these actions will result in the beneficiary not being able to benefit from the age out protection provided by CSPA.

Extraordinary Circumstances

There is a possibility of applying for the green card in situations where the beneficiary failed to seek to acquire the green card. However, this possibility is limited to situations where the beneficiary can prove that extraordinary circumstances prevented seeking to acquire the green card timely.

In establishing extraordinary circumstances, the beneficiary must show:

  • That the circumstances were not created by the beneficiary through his or her own action or inaction.
  • That the circumstances directly affected the failure to seek to acquire the green card within the 1-year period.
  • That the delay was reasonable under the circumstances.

Typical examples of extraordinary circumstances have included:

  • Serious illness or mental or physical disability during the 1-year period.
  • Legal disability such as a mental impairment during the 1-year period
  • Circumstances where an application was rejected by USCIS for the beneficiary to make corrections and the application was re-filed within a reasonable period.
  • The death or serious illness or incapacity of the beneficiary’s attorney or legal representative or a member of the beneficiary’s immediate family
  • Ineffective assistance of counsel.

As with many immigration related issues, the fact that a requirement was not met, does not necessarily mean the case is over. If you find yourself in this situation, the best advice is to take note of the circumstances of your life during the 1-year period and evaluate if these circumstances seem related to the examples provided in this blog. If you think you may have undergone a period of extraordinary circumstances, the next step is to reach out to one of our attorneys to evaluate your situation to help confirm whether you may still qualify to apply for the green card and assist you to prepare the presentation of your circumstances to USCIS.

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This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.

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