USCIS Issues Guidance on “Extraordinary Circumstances” Under CSPA

On June 27, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on evaluating claims of “extraordinary circumstances” for late filings when the applicant must have sought to acquire lawful permanent residence within one year of visa availability pursuant to the Child Status Protect Act (CSPA).

In Matter of O. Vasquez, I&N Dec. 817 (BIA 2012), the Board of Immigration Appeals (BIA) confirmed previous USCIS guidance that filing an application for adjustment of status or an immigrant visa meets the requirement that a beneficiary “sought to acquire” lawful permanent residence within one year of visa availability in order to benefit from the age-out protection provided by CSPA. The BIA further indicated certain “extraordinary circumstances” that prevented the filing of an application could excuse the one year filing requirement.  Such circumstances must not have been created by the applicant. Further, they must be directly related to the applicant’s failure to seek to acquire. Finally, the resulting delay must be reasonable under the circumstances.

The USCIS policy memorandum provides guidance on properly evaluating evidence and appropriately exercising discretion when individuals claim extraordinary circumstances. The memorandum amends the Adjudicator’s Field Manual (AFM) to provide specific non-exclusive factors to be considered on a case-by-case basis: serious illness or disability of applicant; legal disability of applicant; ineffective assistance of counsel; rejection of the application by USCIS; and death or serious illness of legal counsel or immediate family.

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