Murthy Success Story: Green Card Obtained for Child Over 21 Based on Novel CSPA Argument

The Murthy Law Firm recently succeeded in obtaining a green card for a dependent child who initially aged out, but later regained eligibility to apply for adjustment of status as a dependent after an update to the Child Status Protection Act (CSPA). The Murthy Law Firm filed the case to retroactively acquire CSPA benefits for the child. Our client graciously granted permission to the Murthy Law Firm to share his story to help others who may face similar issues.

Background on CSPA

The CSPA uses a formula to help determine when an individual over the age of 21 is still considered a child for purposes of eligibility as a dependent under a parent’s green card case. The CSPA treats certain individuals as being under the age of 21 for purposes of enjoying immigration benefits, even though the individual’s biological age is 21 years or older. Under the CSPA, a child’s age is calculated by looking at the actual age on the date that the priority date for the green card case became current, or the date when the underlying immigrant petition was approved, whichever is later, and subtracting the number of days that the petition was pending. More details on the CSPA are available in the MurthyDotCom NewsBriefs, Child Status Protection Act Basics Part 1 and Part 2. The goal of the CSPA is to provide relief to children who otherwise would age out of eligibility for the green card as derivative beneficiaries of their respective parent.

February 2023 CSPA Update

Until recently, in calculating the CSPA age of a derivative child with a pending I-485 application, the U.S. Citizenship and Immigration Services (USCIS) exclusively used the cutoff dates listed in the final-action chart (Chart A) of the U.S. Department of State (DOS) visa bulletin, which normally are less favorable than the cutoff dates on the dates-for-filing chart (Chart B). However, as discussed in the MurthyDotCom NewsBrief, USCIS Expands Eligibility Under the Child Status Protection Act (27.Feb.2023), the USCIS issued a memorandum on February 14, 2023, that changed USCIS policy to, in certain circumstances, allow CSPA age determinations to be based on the more favorable Chart B, rather than Chart A. This new policy not only expanded the protection for many children who had not yet aged out of a parent’s immigrant petition, but also retroactively benefited certain children who previously filed for adjustment of status based on the dates in Chart B, but whose applications were subsequently denied because they later aged out per Chart A.

Child Who Previously Aged Out Seeks Murthy’s Help

The individual who would later seek help from the Murthy Law Firm was a child under 21 years of age who was included as a dependent on a parent’s I-140 immigrant petition. When the parent’s priority date became current on Chart B of the visa bulletin, the child did not file the I-485, application for adjustment of status, because of the likelihood that he would age out before the priority date would become current on Chart A, which at that time was used to determine a child’s CSPA age calculation. Instead, the child changed status and tried seeking other avenues to obtain a green card.

The Twofold Challenge for the “Child”

In the wake of the February 2023 update, the child contacted the Murthy Law Firm to see if he could benefit from the new CSPA policy. Under the new policy, the child did not previously age out of his parent’s petition. However, while the new policy applied retroactively, it only expressly applied in cases where a child previously had filed an I-485 application that had been denied. In this case, the child had never actually filed the I-485 application, and therefore his situation was not expressly covered under the retroactive policy.

Moreover, the child had a second legal obstacle to overcome. The CSPA requires that a derivative child with a CSPA age of under 21 to have “sought to acquire” status as a lawful permanent resident (i.e., applied for adjustment of status or an immigrant visa) within one year of the priority date on the parent’s petition becoming current. A child who does not meet this requirement generally cannot benefit from the CSPA’s protection. In this case, it was more than a year since the child’s priority date became current on Chart B, seemingly excluding him from benefiting under the CSPA.

Murthy Strategy: Filing I-485 with a Novel Argument

The Murthy Law Firm was determined to help find a solution for this client. Despite the absence of clear USCIS guidance at that time, the Murthy Law Firm believed that the law was on this child’s side and filed an application for adjustment of status for the client. To overcome the client’s sought-to-acquire issue, the Murthy Law Firm employed a novel argument that the child’s failure to meet the sought-to-acquire requirement should be excused because the February 2023 policy change was an extraordinary circumstance over which the child did not have any control, and the child was not eligible to file the I-485 prior to the February 2023 policy change.

Murthy is Ahead of the Curve

The Murthy Law Firm’s strategy foreshadowed a favorable CSPA policy update. On August 24, 2023 the USCIS issued new guidance, as explained in the MurthyDotCom NewsBrief, USCIS to Consider CSPA Age Calculation Policy Change as Extraordinary Circumstance (14.Sep.2023), allowing children who aged out under the prior CSPA rule to file late adjustment of status applications. The August 2023 update expressly included the February 2023 policy update as an extraordinary circumstance in cases where a child could not have filed for adjustment of status prior to the policy update. Shortly thereafter, the USCIS approved the Murthy Law Firm client’s late adjustment of status application, making the child a lawful permanent resident.

Conclusion

The Murthy Law Firm is always pleased to help individuals and families who entrust their lives in our hands. This success story is offered for all individuals to consider speaking with an experienced immigration lawyer before giving up on their dream of obtaining lawful permanent residency in the United States or another U.S. immigration benefit. Should anyone wish to inquire about their own individual situation, the Murthy Law Firm is available to consult with and assist those seeking appropriate relief.

The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.

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