On May 1, 2015, the China EB-5 category will have a cut-off date of May 1, 2013. For the first time in the history of the program which was established by the Immigration Act of 1990, a cut-off date has been established for Chinese born, or chargeable applicants.
If the I-526 petition is approved and the priority date becomes current before the alien’s CSPA age reaches 21, then a one-year period begins during which the alien must apply for permanent residence in order for CSPA coverage to continue. The beneficiary’s CSPA age is determined using the formula below.
- CSPA Age Formula.
Determine the age of the alien on the date that a visa number becomes available. The date that a visa becomes available is the later of:
- the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates availability of a visa for that preference category, or
- the petition approval date if a visa number is already available on the approval date.
Subtract the number of days the petition was pending as described in paragraph (B) below. This is the alien beneficiary’s CSPA age. If the alien beneficiary’s CSPA age is under 21, he or she remains a child for purposes of the application for permanent residence, provided the beneficiary properly applies for permanent residence, within one year of visa availability and notwithstanding the alien’s CSPA age on the date of adjudication of such application.
- Derivative Beneficiaries – Employment-Based .
The number of days that a petition is pending is the number of days between the date that the petition is properly filed and the date an approval is issued on the petition, including any period of administrative review. If the petition was approved and the priority date becomes current before the child’s CSPA age reaches 21, the alien must, within one year of the visa availability date, apply for adjustment of status, an immigrant visa, or be the beneficiary of an I-824 in order for the CSPA coverage to continue.
- Sought to Acquire .
Section 203(h)(1)(A) states that to determine whether an alien satisfies the age requirement for classification as a child, the calculation is “the age of the alien on the date on which an immigrant visa number becomes available for such alien or, in the case of a derivative beneficiary, the date on which an immigrant visa number became available to the alien’s parent, but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of visa availability…”
“Sought to acquire” is a term of art as shorthand for the much longer, and more cumbersome, “sought to acquire the status of an alien lawfully admitted for permanent residence within one year of visa availability,”
An alien seeking classification as a child or as a derivative beneficiary who has a “CSPA age” under 21, must have sought to acquire lawful permanent residence within one year of the visa becoming available.
- The date of visa availability is the first day of the month in which the priority cut-off date or visa is identified as current pursuant to the Department of State’s Visa Bulletin or the date the petition was approved, whichever is later.
- If the visa regresses before the alien has had a full and continuous year in which to seek to acquire, the full one year clock will start again when the visa once again becomes available and the age will be calculated from the more recent date on which the visa became available (Note: if the child seeks to acquire within one calendar year of the actual first date on which the visa became available, despite a regression, the child must use the earlier date for purposes of the age calculation).
- An alien may satisfy the sought to acquire requirement by: (a) filing Form I 485; (b) submitting Form DS-230 to Department of State (Note: the consular process is different and “sought to acquire” may be satisfied with payment of the visa application fees rather than submission of the actual form); or, (c) having a Form I-824 filed on the alien’s behalf.
Extraordinary Circumstances for Late Filing.
In Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), the Board of Immigration Appeals ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an alien who failed to timely satisfy the “sought to acquire” requirement.
The guidance is similar to that used to excuse a late asylum application filing.
The alien must demonstrate that:
- The circumstances were not created by the alien through his own action or inaction;
- Those circumstances were directly related to the alien’s failure to file the application within the one year period; and
- The delay was reasonable under the circumstances.
Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to:
- Serious illness or mental or physical disability during the one year period;
- Legal disability, such as instances where the applicant is suffering from a mental impairment, during the one year period;
- Ineffective assistance of counsel;
- A timely application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter; and
- Death or serious illness or incapacity of the alien’s legal representative or a member of the alien’s immediate family.
In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the alien’s control.
To be able to adjust status in the U.S. there are many requirements and entering on a visitor’s visa with the intent to adjust can pose problems based on having a “preconceived intent to adjust status”. In addition the applicants must not have violated status by being out of status or working without permission.
For more details contact an immigration lawyer specialist.