To: Regional Directors
Service Center Directors
From: William R. Yates /s/
Associate Director for Operations
U.S. Citizenship and Immigration Services
Date: August 17, 2004
Re: The Child Status Protection Act – Children of Asylees and Refugees
On August 6, 2002, the President signed into law the Child Status Protection Act
(CSPA), Public law 107-208, 116 Stat. 927. The CSPA amends the Immigration and
Nationality Act (Act) by permitting certain aliens to retain classification as
a “child” under the Act, even if he or she has reached the age of
21. On August 7, 2002, and July 23, 2003, U.S. Citizenship and Immigration Services
(CIS) issued guidance on the effect of the CSPA on asylum and refugee applications
(attached). The purpose of this memorandum is to provide further guidance to CIS
personnel concerning the effect of Sections 4 and 5 of the CSPA on petitions for
children following to join an asylee or refugee and for purposes of adjustment
of status under Section 209 of the Act. This memorandum should be read in conjunction
with the previously issued memoranda.
The CSPA amends sections 207 and 208(b)(3) of the Act to permit continued classification
as a child for certain derivatives who were under the age of 21 at the time the
principal applicant applied for asylum or refugee status. Pursuant to section
8 (3) of the CSPA, these amendments became effective August 6, 2002 for applications
pending on or after that date and are not retroactive. In order to give full effect
to the statutory provisions, CIS has determined that a derivative applicant eligible
for continued classification as a child under the CSPA will be considered a child
for all related eligibility determinations. Thus, for asylum applications under
section 208 of the Act, adjustment applications under section 209 of the Act,
admission to the United States as a refugee, and following to join applications,
the amendments made by the CSPA to the Act benefit an alien who aged out on or
after August 6, 2002. In the case of an alien who aged out prior to August 6,
2002, the CSPA permits continued classification as a child only if an application
for a covered benefit was pending on August 6, 2002. These exceptions will be
discussed later in this memorandum. In all cases, in order to be considered eligible
for CSPA age-out protection, the derivative child must remain unmarried.
The Asylum and Refugee Divisions of the Office of Refugee, Asylum and International
Operations, have established the criteria for assessing initial eligibility under
sections 4 and 5 of the CSPA. For asylum and refugee applications pending on or
after August 6, 2002, continued eligibility for derivative status is determined
based on the child’s age at the time the parent filed the Form I-589, Application
for Asylum and Withholding of Removal, or Form I-590, Registration for Classification
For asylees, a child who is under 21 on the date the Form I-589 is received by
CIS will continue to be classified as a child for purposes of determining asylum
eligibility and related benefits. In order to be eligible for continued classification
as a child, the derivative must be listed on the Form I-589 prior to a final CIS
decision on the asylum application.
For refugees, a child who is under 21 on the date the principal alien files the
Form I-590, i.e., is first interviewed by CIS, will continue to be classified
as a child for purposes of determining refugee eligibility and related benefits.
In order to be eligible for continued classification as a child, the principal
alien must have listed the child on the Form I-590 prior to adjudication of the
application. Thus, for any asylum or refugee application filed on or after August
6, 2002, a derivative child will retain classification as a child for purposes
of the initial asylum or refugee determination, for any subsequent Form I-730
Refugee/Asylee Relative Petition1, and/or for the section 209 adjustment.
Forms I-730 and 209 Adjustment Applications Pending on August 6, 2002
In determining eligibility for continued classification as a child for purposes
of a Form I-730 or 209 adjustment application pending on August 6, 2002, the adjudicator
should determine the derivative applicant’s age at the time the principal
filed the refugee or asylum application and at the time the related benefit application
was filed. As long as the Form I-730 beneficiary or the 209 adjustment applicant
was eligible for the related benefit at the time of filing the Form I-730 or Form
I-485 (that is, was still a child under the age of 21), he or she is eligible
for continued classification as a child.
Individuals ineligible for Continued Classification as a Child
An individual who aged out prior to August 6, 2002 is not eligible for continued
classification as a child UNLESS an application for one of the covered benefits
was pending on that date. For purposes of the CSPA, if all of the necessary steps
for issuing travel documents to the derivative child or following to join child
(such as approval of the Form I-730, the overseas interview, or completion of
all security checks) were not completed on or before August 6, 2002, the case
is considered to be “pending.”
• A Form I-589 was filed on February 7, 2000, listing an 18-year-old derivative
son. On July 19, 2002, the principal alien was granted asylum. On October 10,
2002, the derivative son turned 21 and a Form I-730 was filed on his behalf on
November 13, 2002. In this case, the derivative child is protected by the CSPA
because he was listed on his parent’s Form I-589 prior to his 21st birthday
and he turned 21 after August 6, 2002.
• A Form I-730 was filed on behalf of a 20-year-old son on August 23, 2001.
On September 23, 2001, the Form I-730 was approved by the Nebraska Service Center
(NSC) and forwarded overseas for processing. On March 31, 2002, the following
to join beneficiary turned 21 years old. On April 22, 2002, the following to join
beneficiary was called for an interview, but because he had aged-out, the Form
I-730 was returned to the NSC, and the approval revoked on May 31, 2002. This
alien is not covered by the provisions of the CSPA as he had nothing pending before
CIS on August 6, 2002.
• A Form I-730 was filed on behalf of a 20-year-old son on August 23, 2001.
On September 23, 2001, the Form I-730 was approved by the NSC and forwarded overseas
for processing. The beneficiary appeared for his interview on January 31, 2002,
but the case was continued for completion of all required security checks. On
March 31, 2002, the following to join beneficiary turned 21 years old. The security
checks were not completed until August 24, 2002. Unlike the example above, this
alien is covered by the provisions of the CSPA as his Form I-730 was still pending
before CIS on August 6, 2002, and he can still be considered a “child.”
• A Form I-589 was filed in January 2002 listing a 20-year-old son outside
of the United States. The Form I-589 was approved on July 31, 2002. The son turned
21 on August 1, 2002. The Form I-730 for the derivative son is filed August 15,
2002. The beneficiary turned 21 prior to passage of the CSPA and did not have
a Form I-730 pending on August 6, 2002, so he is not entitled to continued classification
as a child.
• A Form I-589 was filed in May 2002 listing a 20-year-old derivative daughter
in the United States. The Form I-589 was approved on July 1, 2002. The daughter
turned 21 on August 15, 2002. The Form I-485 was filed on July 2, 2003. The daughter
remains eligible for adjustment of status as a derivative under section 209 of
the Act because she was under 21 at the time of filing the asylum application,
she was granted asylum prior to August 6, 2002, and she filed an application for
adjustment of status after August 6, 2002, in which she retains classification
as a child because she was a child at the time of the grant of asylum. (Note that
the eligibility criteria for derivative petitions is slightly different from that
of 209 applications).
• A 19-year-old child is granted derivative asylum status on June 1, 2001,
and files for adjustment of status on June 1, 2002. On August 20, 2002, she turns
21. The CSPA covers her adjustment application because she turned 21 after August
• Same scenario, but the adjustment application is filed on August 31, 2002.
She continues to be classified as a child because she aged out after August 6,
• An 18-year-old child is granted derivative asylum status on March 15,1999,
and applied for adjustment of status on March 15, 2000. She turns 21 on April
15, 2002. Because of the annual 10,000 limitation on asylum adjustments, she will
not be eligible for adjustment of status until approximately March 2009. Although
she will be older than 21 on that date, she was under 21 at the time she was granted
asylum and at the time of filing her adjustment application which was pending
on August 6, 2002. Even though she aged out prior to August 6, 2002, the pending
application makes her eligible for continued classification as a child pursuant
to the CSPA.
Please note that the examples provided above are not exclusive of other possible
scenarios that may appear as CIS officers adjudicate cases that are affected by
For additional information on refugee and asylee eligibility, including refugee
travel, consult the specific guidance issued by the refugee and asylum divisions.
CIS personnel with questions regarding this memorandum should go through appropriate
supervisory channels and contact Helen deThomas via electronic mail.