The Impact of Retrogression on the CSPA
Posted Nov 04, 2005
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We at The Law Office of Sheela Murthy have received several questions about how retrogression impacts the benefits provided by the Child Status Protection Act (CSPA) in employment-based green card cases. Unmarried children are eligible for dependent benefits, including green cards, until they turn 21 years old. However, the CSPA locks in an age for dependent children. That is, the child is treated as being under age 21 for purposes of immigration benefits in certain circumstances, even though s/he is chronologically over 21 years. If the locked age is less than 21 for an unmarried child, that child is still permitted to obtain the green card as a dependent. With retrogression, however, the final calculation will likely give fewer children the benefit under the CSPA.
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Priority Date Never Current before Labor Certification Approved
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Many persons are still in the labor certification stage of the employment-based green card process. When a labor certification is approved, such an individual can file the I-140 petition. Under current law, s/he cannot file the I-485 application unless or until the priority date is current. In this scenario, the child's age will not be locked until the priority date is current. Under the CSPA formula, a child's chronological age at the time the priority date becomes current is reduced by the time the I-140 petition was pending with the U.S. Citizenship and Immigration Services (USCIS). To calculate the time that the I-140 petition was pending, the government subtracts the date the USCIS approved the I-140 petition from the date the petitioner filed the I-140 petition with the USCIS. No other time is counted.
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For example, if a child is 21 and two months old on November 1, 2005, when the priority date becomes current for his parent's employment-based case, the USCIS will use the following equation:

21 years, two months – (I-140 approval date – I-140 filing date) = Child's CSPA age

If the I-140 petition was filed on January 1, 2005 and approved on July 1, 2005, then the equation is completed as follows:

21 years, two months – (July 1, 2005 – January 1, 2005) = Child's CSPA Age

- OR -

21 years, two months – (6 months) = Child's CSPA Age

Therefore, in this example, the Child's CSPA age is 20 years, 8 months, and the child is eligible for a green card as long as the child seeks to acquire the green card by filing an I-485 application in the U.S., a DS-230 Part 1 for consular processing, or the child's parent files an I-824 application for consular notification within one year of the priority date becoming current.
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Note that, if the USCIS processes the I-140 petition more quickly in this example (i.e., approves the I-140 petition on February 1, 2005), the child's CSPA age would still be over age 21, and the child would likely not qualify for the benefits of CSPA. Thus, with faster I-140 processing and long waiting times due to retrogression, the CSPA will not always protect these children.
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Priority Date Current - Then Retrogresses
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While the example above presents a straightforward answer to whether or not a child can benefit from the CSPA, a more troubling situation may occur if the parent had a labor certification approved at a time when the priority dates were current and then the dates retrogressed. The manner in which the days would be counted is unclear, and there are a number of possible scenarios.
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If the parent filed the I-140 and I-485 concurrently when the priority dates were current, and, thereafter, cutoff dates / unavailability occurred, it is not entirely clear that the calculation of whether the child has sought to acquire status is counted from the time the priority date becomes current again. That is, it is not clear whether the one year is calculated from the date the labor certification was approved and the person was initially eligible to file the I-140 petition and I-485 application concurrently. Alternatively, the one year may begin at the time the labor certification was approved and the I-485 could be concurrently filed with the I-140 petition, but then stops when the numbers retrogress and resumes when the priority date becomes current again. It is also not clear if the calculation of when the priority dates become current is measured from the first point when the I-140 and I-485 could be filed or from the point when the I-140 is approved. The USCIS and the U.S. Department of State (DOS) will need to provide further guidance on this issue. We at The Law Office of Sheela Murthy hope that they will construe this matter liberally, in order to safeguard family unity and the underlying purpose in the enactment of the CSPA.
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Conclusion
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The CSPA will protect some dependents of parents who have employment-based green card petitions pending, but it will likely not protect all. We urge the USCIS and DOS to take a generous interpretation in applying the CSPA wherever possible to protect the children and keep the family unit preserved, as the U.S. Congress has expressed its intent to benefit unmarried children who are unable to get the green card because of the delays and backlogs in green card processing. It is best for parents, particularly those with teenaged children, to start their green card cases as early as possible, in an attempt to avoid an age-out situation that is not protected under the CSPA.