One of the most heart wrenching consequences of the Chinese Visa waiting line is the ageing out of derivative children. Before the mainland China cut-off date was established in May 2015, there was a small window of opportunity to “seek to acquire” permanent residence status which was effective in “freezing” the child’s age. However, now with the waiting line exceeding 30 months and getting longer, even though many petitions are pending one to two years, inevitably the priority date or filing date is not “current” at the time of approval of the I-526 petition, so taking steps to “seek to acquire” are not effective in freezing the child’s age. Thus, unless the child was 17, or maybe 18 at the time of filing, most of the 20-year-old, and a lot of the 19-year-old children may age out.
So while hundreds of I-526 petitions that were filed in 2014 and 2015 had teenage derivative children seeking lawful permanent residence with their parents, many who were approved but who failed to take steps before May 2015, will likely age out. This is because a derivative child must obtain a green card before turning 21 years of age. As the China visa backlog increases the likelihood that many of these children will “age-out” and will not be issued green cards is high.
The Child Status Protection Act (“CSPA”) provides a solution allowing applicants to “freeze” the age of these derivative children and prevent them from aging out. However, satisfying the CSPA requirements to lock-in the derivative’s age is anything but child’s play. Practitioners and EB-5 families must navigate multiple departments within the Department of State (“DOS”) and keep abreast of changing guidance.
Here are the essentials everyone must know regarding lock-in procedures under the CSPA.
- CSPA Basics. CSPA allows a derivative child to subtract the time the immigrant visa petition (I-526) was pending from his or her actual age. The CSPA age is the child’s actual age on the date a visa became available (either the date the petition was approved or the first day of the month when the priority date is current according to the Final Action Date Chart A) minus the time the petition was pending. However, the CSPA does not provide “age-out” relief for the time after the I-526 petition is approved until the date a visa becomes available unless the child’s age was frozen by taking steps at a time when a visa was available. Before May 2015 there was no waiting line but now, when applicants receive their I-526 approval, the priority date is usually not current unless the case has been pending for longer than the adjudication time.
- Lock-in CSPA Age. To be effective, the child must “seek to acquire” permanent residence within one year of a visa becoming available. This locks or freezes the child’s CSPA age if a visa is available at the tie these steps are taken and ensures that the child will not age out before the final adjudication of the immigrant visa or adjustment of status.
- How to Lock-in. Previously, the Foreign Affairs Manual (“FAM”) offered three primary ways to lock-in a child’s age. 9 FAM 42.42 N12.6 advised:
- File Form DS-260, but allowed submission of Form DS-230, the form that preceded the online DS-260;
- File Form I-824 if the principal applicant adjusted status in the U.S. and the derivative child seeks a visa to follow to join; or
- File Form I-485 adjustment of status if both the principal applicant and the derivative child are in the U.S. and eligible to do so. Filing Form I-485 for the principal alone will not lock in the child’s age.
- Guidance from the State Department also indicated that payment of the consular visa fee alone was sufficient (of course one can’t pay the fee, unless a Fee bill is issued and in many instances DOS would not issue a fee bill). The issuance of fee bills was random and unpredictable.
- April 15, 2016 Policy Memorandum. USCIS published guidance after the BIA decision in Matter of O. Vazquez clarifying the CSPA lock-in procedures. Notably, it advised that payment of the visa application fees, rather than the submission of the actual visa application, “may” satisfy the “sought to acquire” requirement.
- New Rule Changes. CSPA lock-in rules changed when the DOS revised and reorganized the FAM, and when the Visa Modernization Initiative created the Final Action Date and Date for Filing Charts in the Visa Bulletin. As a result, the new rules found in 9 FAM 502.1-1(D)(6) made the following changes:
- While submitting Form DS-260 still freezes a child’s age, applicants can no longer submit Form DS-230.
- Payment of the visa fee “can” satisfy the sought to acquire requirement.
- Current Issues. Despite the new language in the FAM, complying with these provisions is harder than it appears. To submit Form DS-260 and pay the fee, the National Visa Center (“NVC”) must send a fee bill for each family member. However, if NVC determines that a child is close to aging out, it will not issue a fee bill for that child, thus making it impossible to complete the lock-in procedures for a family that cannot file Form I-485. By contrast, the Form DS-230 was filed on paper, and thus could be done without NVC issuing fee bill. It is also common to see derivative children left off of interview appointment notices, precluding them from presenting their case to a Consular Officer. It is advisable to notify USCIS at the I-526 stage that derivative beneficiaries will seek consular processing, with copies of passports, birth certificates and national identification cards, so when the case is forwarded to NVC, it can issue the appropriate number of fee bills.
- More Issues. Even if lock-in procedures were completed flawlessly, the challenge becomes, how does an applicant prove this to the Consular Officer? The antiquated paper Form DS-230 is not entered into a central database, so the Consular Officer does not know that the proper lock-in procedures have occurred. Similarly, despite the purpose of Form I-824, the DOS is not automatically notified by USCIS that this form has been filed.
- Solutions. Practitioners must continually request the issuance of a fee bill in these cases. If a child is not included on the interview notice, practitioners must contact the Consular Post to present a legal brief supporting the claim that the child has not aged out and providing evidence of the lock-in steps that have been completed. It is important to point out that final determination of a child’s age is to be conducted at the interview, not before.
Many applicants who complied with the CSPA requirements one and a half years ago will find that their actions may not have complied with the current CSPA requirements. It is vital that their immigration attorney understand these changing rules to effectively advocate before the NVC and the DOS and present the strongest argument that their age was indeed frozen under the CSPA.
 The USCIS Policy Memorandum refers to the case as Matter of O. Vasquez, however the correct spelling is Vazquez.