NEW HOPE FOR CHILDREN WHO DID NOT
“SEEK TO ACQUIRE” A VISA WITHIN ONE YEAR
By Michael J. Gurfinkel, Esq.
The Child Status Protection Act (CSPA) enables a child who “aged-out” (turned 21) to nevertheless be processed for an immigrant visa, provided they meet certain eligibility requirements. One very important requirement under Section 3 of the CSPA is that the child must “seek to acquire” his or her visa within one year of when the priority date was current, (or visa became available).
In many CSPA cases, the child’s age is calculated to be under 21. However, for one reason or another, the child did not “seek to acquire” his or her visa within that one year deadline (because of oversight, inadvertence, lack of knowledge of immigration laws, etc.) As a result, the child’s adjustment of status application or immigrant visa was denied.
However, what does the term “seek to acquire” actually mean? How does one go about satisfying that requirement? The USCIS and the Department of State (DOS) have taken a very narrow, restrictive interpretation of this phrase. Their policy and position had been that in order to satisfy the “sought to acquire” requirement, there must have been the actual filing or submission of an adjustment of status application (Form I-485); Form DS-230; or Form I-824 within one year of the priority date being current.
There were various cases that later held that the actual filing of a form or application may not necessarily be required. Instead, some cases ruled that hiring an attorney and/or taking other “substantial steps” to pursue a visa could also satisfy the “sought to acquire” requirement. However, USCIS and DOS declined to follow those decisions, either because they were unpublished decisions or “dicta” (side comments by a judge, which do not directly deal with the ultimate ruling or resolution of the case).
Recently, the Board of Immigration Appeals (BIA) issued a published decision, which could potentially greatly expand the meaning of the term “sought to acquire”. The BIA ruled that satisfying this requirement is not limited solely to the actual filing of a form or application, but instead there could be other ways to satisfy that requirement.
In that published decision, the child was petitioned by his father in the F-2A category (single, minor child of immigrant). A visa became available for this child (or the priority date was current) in March 2004). Therefore, under the CSPA, the child should have sought to acquire his visa within one year, or by March 2005. However, he did not file his adjustment of status application (Form I-485) until October 2005 – more than one year after a visa became available. Therefore, even though his age was calculated to be under 21, he missed the one year deadline to pursue his visa.
The child tried to argue that he had satisfied the one-year sought to acquire requirement because his parents “consulted with a notario about filing an application within that period”. The USCIS maintained that the phrase “sought to acquire” means an actual filing with the USCIS…” (Emphasis added). Therefore, his adjustment of status was denied, he was placed in removal proceedings, ordered removed, and then appealed to the BIA.
In its decision, the BIA noted that the term “sought to acquire” is ambiguous, but agreed that it encompasses more than just the actual filing of a form or application. The BIA listed the types of actions that could satisfy the “sought to acquire” requirement:
1. The proper filing (or submission) of: an application for adjustment of status (Form I-485); Form I-824; and/or Form DS-230, within one year of visa availability.
2. The timely submission of the appropriate form or application to the applicable agency (USCIS, NVC, or Embassy), but the application was rejected for a procedural or technical reason, such as the absence of a signature on the document; and/or
3. Demonstrating and documenting that the failure to timely file within one year of visa availability was due to “extraordinary circumstances” which were “beyond the alien’s control”.
The BIA gave a number of examples of what constitutes extraordinary circumstance, such as actually hiring/paying an attorney to assist in preparing and filing a timely adjustment application, but the attorney missed the one-year deadline of filing, “thereby effectively preventing the alien from filing”. However, merely contacting an attorney for legal advice about initiating the process for obtaining a visa is not enough to satisfy this requirement. You should have actually retained the attorney to process your child’s case.
In this particular decision, the BIA ruled that the child did not satisfy the “sought to acquire” requirement, because he “merely sought legal advice and did not actually file his adjustment application within one year of visa availability”. Therefore, merely seeking legal advice is not enough. However, if you had already hired an attorney to process your child’s case within one year, then this recent BIA case could possibly benefit you. If your child’s visa was denied because he or she did not “seek to acquire” a visa within one year, and you think that this new case may apply to your situation, you should definitely seek the advice of an attorney, who can evaluate your situation, and determine if the denial or refusal could be reopened and/or reconsidered by the government.