Chapter 23 - § 23.4 • APPLICABILITY OF CSPA

• Jurisdiction: Colorado

§ 23.4 • APPLICABILITY OF CSPA

§ 23.4.1—Categories Of Cases CSPA Covers

CSPA applies to a child who is a beneficiary or derivative beneficiary of:

1) An immigrant petition pending on or after August 6, 2002;
2) An immigrant petition approved before August 6, 2002, if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status; or
3) An application pending before the U.S. Department of Justice (and now also USCIS)⁵ or U.S. Department of State on or after August 6, 2002.⁶

The first category, "an immigrant petition pending on or after August 6, 2002," includes an I-130 family-based petition, an I-140 employment-based petition, or an I-360 VAWA petition if there is continuing agency action on the petition, including an appeal or motion to reopen filed with the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA).⁷

The second category, "an immigrant petition approved before August 6, 2002, if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status," includes an I-130 family-based petition, an I-140 employment-based petition, or an I-360 VAWA petition. There is no requirement that the beneficiary have filed an application for an immigrant visa or for adjustment of status prior to August 6, 2002.⁸

The third category has two parts: (1) "an application pending on or after August 6, 2002, before the U.S. Department of Justice (and now also USCIS)," which includes an I-485 application to adjust status, an I-589 asylum application, an I-590, Registration for Classification as Refugee, and an I-730, Refugee/Asylee Relative Petition, where there is no final determination; and (2) "an application pending before the U.S. Department of State on or after August 6, 2002," which includes an immigrant visa application and a diversity visa (DV) application, where there has been no final determination.

USCIS Application Final Determination

There is no "final determination" with respect to an application for adjustment of status where there is continuing agency action on the application (including in the immigration court⁹ ), or there is an appeal pending with the BIA, or the adjustment of status applicant is seeking judicial review in the federal courts.¹⁰

Immigrant Visa Application Final Determination

A "final determination" with respect to an immigrant visa application is a refusal to issue the visa. However, since an applicant...