The U.S. immigration laws can be harsh- we all know that. But the worst parts of the immigration laws surface when it separates a child from his or her parents. Just ask the parents whose family-based immigrant petition has been approved, but their child cannot come to the U.S. with them because that child has “aged out,” i.e. the child has turned 21 years old.
What do the parents do in such a situation? Do they go to the U.S. anyway, leaving their child back in their home country? Or do they let go of their dream of living in the U.S. to remain with their child?
In practice, the many parents may not have to make this decision– the Child Status Protection Act (CSPA) can come to the rescue.
Child Status Protection Act of 2002
The Child Status Protection Act of 2002 was enacted to address the growing problem of minor children losing their eligibility for immigration benefits because they had aged-out or turned 21 years old due processing delays by the U.S. Citizenship and Immigration Services (USCIS) or the Department of State (DOS). Although not intended initially, the CSPA may also benefit some applicants who age-out due to the unavailability of a visa number.
The CSPA changed how to determine whether a child has “aged out” (i.e., turned 21 years old before visa issuance or adjustment of status) for the purpose of the issuance of immigrant visa or approval of an adjustment of status application.
The CSPA applies to all cases where the Immigrant Petition was approved on or after August 6, 2002, where a child aged out after that date or for applicants who may have aged out before that date but had applied for a visa before aging out and were later refused under 221(g).
NOTE: If the petition was approved before August 6, 2002 and the applicant aged out before that date and either did not apply for a visa before that date or applied and was refused on age-out grounds, the CSPA does not apply.
The following information is provided to assist individuals who think they may qualify under the aging-out provisions of CSPA:
A. CSPA Age Applicability
Applicability: The (CSPA) applies to the following immigrant visa categories:
2. Derivative children in all family- and employment-based preference categories (F1, F3, F4, and E- categories), including Violence Against Women Act (VAWA) self-petitioners and derivative children.</>
3. Diversity Visa Lottery derivative children applicants.
4. Derivative Children Refugees and Asylees.
B. CSPA Age Applicability
If the original I-130 was filed on behalf of a child by their US Citizen parent (IR2),
or a VAWA self-petition was filed by a child of a US citizen or the child is a derivative of a VAWA self-petition filed by the spouse of a US Citizen
Determine if child was under 21 years of age when petition was filed?
If YES, then the applicant’s age is frozen at the CSPA age that the petition was filed until the immigrant visa is issued or adjustment of status application is adjudicated.
Fred, a US citizen, is filing an I-130 petition for his 2 children- Amy and John. Amy is 20 years old (she turns 21 in a few days), John is 18. The I-130 petition is filed with USCIS the day before turns 21. Because of unexpected delays with the adjudication of the I-130 and additional delays with visa processing, Amy is 23 by the time she appears for their interview. John has just turned 21. Are Amy and John protected by CSPA?
Yes! Because both of their I-130 petitions were filed before they turned 21, their ages were “frozen” and they remain immediate relatives of a US citizens until they obtain their immigrant visas and enter the U.S. Amy’s age was effectively frozen at 20 years and 364 days. John’s age was frozen at 18.
C. Steps To Calculate CSPA Age
If a petition is filed under an employment-based or family-based preference category (F1, F2A, F2B, F3, F4, E1, E2, E3, E4, EW) or a VAWA self-petition is filed by a child of a lawful permanent resident, or the child is a derivative of a VAWA self-petition filed by the spouse of a lawful permanent resident or the child is a DV applicant (as a derivative of their parent’s entry).
Follow these steps to calculate the CSPA Age:
STEP 1: Determine the Child’s Age at the time the petition was filed
Was the child under 21 years of age when the petition was filed or the DV registration period opened?
If YES, proceed to STEP 2.
If NO, then child is not protected by CSPA.
STEP 2: Calculate the child’s CSPA Age
For family and employment-based preference categories (including VAWA self-petitioners and derivatives), the CSPA age of the applicant is determined by taking the age of the child when a visa number becomes available and subtracting the time the case was pending with the USCIS.
For those taking part in the DV Lottery, the CSPA age of the applicant is determined by taking the age of the child when the DV rank number becomes available and subtracting the length of time from the date of the opening of DV registration to the date the DV results are released.
1. Take note of the following information:
a. the date a visa number became available for the primary applicant
i. For family preference and employment-based applicants (including VAWA self-petitioners and derivative children), this is either the date the petition was approved or the date the visa became available as per the Visa Bulletin (Final Action Date), whichever is later.
ii. For DV derivative applicants, this is the date, per the Visa Bulletin, when the DV applicant’s rank number becomes available.
c. Petition filing or DV entry details
i. For family and employment-based preference categories, the date the petition was filed and the date the petition was approved by the USCIS.
ii. For DV applicants, the date that DV registration opened and the date of the DV selection letter.
2. Determine how old the child was when the visa number or DV rank number became available.
3. Determine how long the petition was pending with USCIS or the length of time from the date of the opening DV registration to the date that DV results are released.
4. Determine CSPA Age:
CSPA Age = (Age of Child When Visa Became Available) MINUS (the Pending Period of Time)
DID YOU KNOW
If the result of the computation is below 21 years, proceed to Step 3. If the applicant’s computed CSPA age is over 21, the applicant would not qualify for age-out protection under the Act, and Step 3 would not be applicable.
STEP THREE: If the applicant’s computed age in Step 2 is less than 21 years old, did the applicant pursue an immigrant visa within one year of visa availability?
In order to be eligible for CSPA protection and “lock in” the CSPA age, the applicant child must have sought to acquire lawful permanent resident within one year of the visa becoming available.
Sought to acquire generally includes (but is not limited to)
b. Submission of the DS-260
c. Submission of the Form I-824 on the child’s behalf
d. Submission of the Form I-485
Let’s take a look at some more examples to get a clearer picture of the CSPA Calculation for preference categories and DV Lottery entrants.
CASE SCENARIO 2
Jenny, a U.S. citizen filed an I-130 petition for her sister, Fiona on January 1, 1999. Fiona has a daughter who is under 21 when the petition was filed, which makes her a qualifying derivative family member. The petition was approved on January 1, 2000. On October 1, 2009, Fiona’s priority date for the F4 visa category (siblings of US citizens) becomes current, i.e. visas become available for those who filed an I-130 in the F4 category on or before January 1, 1999. Fiona’s daughter is now over 21.
Is Fiona’s daughter protected by CSPA?
- First, we must determine the daughter’s age when the visa become available on October 1, 2009.
The daughter’s date of birth is February 22, 1985.
On October 1, 2009, the daughter is 24 years, 7 months, 10 days.
- Next, we determine that the I-130 petition was pending for 1 year.
- Now, we calculate the CSPA age.
24 years, 7 months, 10 days MINUS 1 year = 23 years, 7 months, 10 days.
The daughter’s age is more than 21 years so she will not be able to get CSPA protection and has “aged out”.
CASE SCENARIO 3
Acme Trucking has filed a 3rd Preference Employment Based (EB-3) petition on behalf of their employee, Marcus, who was born in Canada. The petition was filed on March 1, 2017 and was approved on December 3, 2017. According to the Visa Bulletin, visa numbers are “current” for EB-3, which means a visa number is available for Marco as of the date of the approval. Marco’s son Alexis is a derivative beneficiary of the Form I-140 and is currently in the U.S. in F-1 status. He was already 21 when the petition was filed.
Is Alexis protected by CSPA?
- First, we must determine the Alexis’ age when the petition was approved on December 3, 2017. Alexis’ date of birth is October 31, 1996.
On December 3, 2017, Alexis is 21 years, 1 month, 2 days.
- Next, we determine that the I-140 petition was pending for 9 months and 3 days.
- Now, we calculate the CSPA age.
21 years, 1 month, 2 days MINUS 9 months, 3 days = 20 years, 4 months, 1 day.
Alexis’ CSPA age is less than 21 years old which means he is protected by CSPA. In order to “lock in” his CSPA age, he must file his Form I-485 within 1 year of December 3, 2017.
CASE SCENARIO 4
Mary, an Australian national, entered the 2018 DV Lottery. The registration period opened up on October 4, 2016. Results for the DV Lottery were posted on May 2, 2017. Mary’s daughter Sarah is 21 and wants to know if she’s eligible to accompany her mom to the U.S.
- First, we must determine Sarah’s age when Mary’s DV rank number becomes current. Mary’s rank number is current on March 1, 2018. On March 1, 2018, Sarah is 21 years and 9 months
- Next, we determine that the DV “pending time” was 6 months and 29 days (October 4, 2016 to May 4, 2017).
- Now, we calculate the CSPA age.
21 years, 9 months MINUS 6 months, 29 days = 21 years, 1 month, 30 days.
Sarah’s CSPA age is more than 21 years old which means she is not protected by CSPA.
What The CSPA Does Not Do become
- CSPA does not increase or create exceptions to the annual worldwide or per-country limits on the number of immigrant visas available in the family- or employment-based preference categories or under the diversity visa program.
- CSPA does not exempt a beneficiary or derivative beneficiary from the requirement of being unmarried for classification as a “child.” CSPA only protects a person against “aging out” of the child definition. Marrying prior to adjustment of status or admission as an immigrant will remove any protection CSPA would have offered.
- In the case of a child of a lawful permanent resident or a derivative child of the direct beneficiary of a family- or employment-based preference visa petition, CSPA does not provide automatic protection against “aging out,” but requires action to be taken by the beneficiary, a parent, or their attorney. Specifically, the statute provides that a person is entitled to have his or her age calculated according to the formula established in CSPA only if he or she “has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of” the date on which an immigrant visa number became available in his or her visa category. The age of a beneficiary who fails to take the necessary action within the one-year period is determined according to the pre-CSPA rule, which is according to his or her actual age.
- CSPA does not adequately eliminate the problem of “aging out” in the case of children of lawful permanent residents or derivative children in the family-based or employment-based preference categories with substantial waiting periods for visa availabilit.
- CSPA does not provide age-out protection for dependents applying for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA). It also does not apply to K nonimmigrants, dependent children under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), special immigrant juvenile applicants, or Family Unity beneficiaries.
The U.S. Congress passed the Child Status Protection Act (CSPA) to permit certain aliens to retain classification as a “child” under the INA, even if he or she has reached age 21. The CSPA applies to: (a) direct beneficiaries of family-based immigrant petitions, (b) derivative beneficiaries in family-based, employment-based, DV categories, refugees and asylees.
As backlogs in family-based categories and employment-based categories continue to increase, CSPA protection has been a lifeline for scores of immigrant families.
If you have a child who is danger of aging out or you believe you are eligible to obtain a visa as a derivative child even if you have turned 21, contact a VisaPro so we can assist you.
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The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult attorney.
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