Parents’ annulment affects child’s CSPA eligibility

Dear Attorney Gurfinkel:

In 2005, I was petitioned by my parent as a married child (category F-3), which was eventually approved in 2010. In 2009, my marriage was annulled. In 2019, the National Visa Center (NVC) sent a notice to me, at which time I filed the forms (including the DS-260), notified them of my annulment and asked to be reclassified as a single child of a US citizen (Category F-1). Then the pandemic struck and the embassy stopped scheduling visa interviews.

Eventually, I was scheduled for an interview in 2022, along with my child, who had just turned 21. The consul refused to issue my child’s visa, stating he was not qualified or eligible under the Child Status Protection Act (CSPA). I know it took five years for USCIS to approve my petition (2005-2010), so shouldn’t the CSPA provide a five-year grace period for my child’s age? Is there any hope?

Very truly yours,

A very distraught parent

Dear Distraught:

Eligibility under the CSPA can be very complex and confusing. There are two separate and distinct steps or requirements for eligibility and if you mess up on one, the child is not qualified.

The first step or requirement is calculating the child’s age by determining the child’s age when the priority date becomes current, then subtracting the processing time of the petition to be approved. In your case, if it took USCIS five years to approve your petition and your child had just turned 21, it would appear your child satisfied the first step for CSPA eligibility in that he would’ve been under 21 years of age upon visa availability.

The second step or requirement is that the child must “seek to acquire” a visa within one year of visa availability. It appears that’s where you may have messed up. And what’s more tragic is that you may not have even realized there was such a requirement of seeking to acquire a visa within one year or when that one year started.

In your case, as soon as your annulment was finalized in 2009, your petition automatically converted from F-3 to F-1, and you were subject to the priority dates in the F-1 category. It appears from the Visa Bulletin, a 2005 priority date would have been current in 2016 in the F-1 category. That means your child had until 2017 (or one year from visa availability) to seek to acquire his visa by filing the DS-260, an affidavit of support or some other concrete step. If you did not file the paperwork until 2019, then you missed the one-year “sought to acquire” requirement and your child would not be eligible under the CSPA (unless you could demonstrate “extraordinary circumstances,” which will be the subject of a separate article). If a child is not protected by the CSPA, the child would need to have the visa issued and arrive in the US before his 21st birthday (just like in the old days before the CSPA was enacted).

Also, in your particular case, as a result of the annulment, you and your child were eligible to receive your visas starting in 2016, years before your child’s 21st birthday or the pandemic. But you neglected to notify the NVC of the annulment until years later, so of course they would not know to reclassify your case.

As I stated, the CSPA can be very complex and confusing, especially in calculating the child’s age and seeking to acquire a visa. If you have a child who may potentially age out, rather than continuing to handle the case yourself and possibly miss crucial deadlines or mess up the child’s CSPA eligibility, you should consult with an attorney who can evaluate and monitor your case.

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