The consular officer did not mention, and apparently was unaware of the Child Status Protection Act (CSPA), passed into law on August 6, 2002 by President Bush. This law amends the Immigration and Nationality Act by permitting an applicant to retain classification as a “child”, even if he or she has reached the age of 21, subject to certain restrictions.
Both the USCIS and the State Dept. define the date on which an immigrant visa becomes available as the date on which the beneficiary’s priority date becomes current. This is the first day of the month in which the immigrant visa becomes available. As long as the beneficiary seeks to acquire Permanent Resident Status within one year of such availability, the age becomes “locked in” on the date that the priority date becomes current, less the number of days that the petition has been pending. The number of days a petition is pending is calculated by counting the days that elapse between the date the I-130 is filed and the date it is adjudicated.
Applying this statute to Supriya’s case, we find that on the date the I-130 became current (December1, 2002), she was 21 years, 13 days old. If the number of days the I-130 had been pending(from November 15, 1990 to December 10, 1990, or 25 days) are subtracted from this total, Supriya’s “locked in” age is 20 years, 353 days. Thus Supriya was effectively under the age of 21 at the time her immigrant visa became available.
Supriya also satisfied the last part of this provision of the CSPA, in that she had applied for an immigrant visa within one year of visa availability (the DS-230 was filed on October 1, 2002).
Based on the foregoing, our Attorney requested that a new immigrant visa appointment be made for her and she be given the chance to come to America with her family.
After reviewing this case again, the U.S Consulate in Mumbai admitted its error and determined that Supriya did in fact qualify for visa issuance under the CSPA since she applied for an immigrant visa within one year of visa availability even though she was prevented from applying at the first opportunity due to a regression of her priority date. The Mumbai Consulate has scheduled an immigrant visa interview appointment for Supriya.
As you can see from this example, it is sometimes the concise presentation of complex details that can make all the difference in your immigration case.
This article has been contributed by Elizabeth Walder, President of Immigration Law Associates, P.C. a Chicago based immigration law firm which assists individuals, corporations and other institutions in all aspects of U.S immigration matters. For more information please visit our website at www.immig-chicago.com. For advice tailored to your situation, please contact the Immigration Law Associates office at 847-763-8500 or by email at ewalder@immig-chicago.com
Disclaimer: The materials contained herein have been prepared by Immigration law Associates, P.C. for informational purposes only and are not to be considered legal advice. The materials on this or associated pages, documents, comments, answers, e-mail, articles or other communications related to this article should not be taken as legal advice for any individual case or situation. The materials and /or transmission of the information are not intended to create and receipt does not constitute, an attorney client relationship.