The Child Status Protection Act: How Does it Help an Aged-Out Child to Get a Green Card?

The U.S. immigration law can be harsh. We all know that but the worst part of the immigration law comes up 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. A recent survey shows that one in 10 families whose family-based immigrant petition has been approved has a child who has aged-out. 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 parents may not have to make this decision. The Child Status Protection Act (CSPA) comes to the rescue in such situations.

The Child Status Protection Act of 2002 was signed into law by President George W. Bush on August 6, 2002, and became effective on that date. CSPA was enacted to address a growing problem of minor children losing their eligibility for immigration benefits because they had aged-out or turned 21 years old because of processing delays by the U.S. Citizenship and Immigration Services (USCIS) or the Department of State (DOS). While the CSPA benefits many it was not intended to benefit an applicant who aged-out due to the unavailability of a visa number.

The CSPA changes 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 visas and the adjustment of status of applicants in most immigrant categories.

The CSPA became effective as of August 6, 2002 and applies only if either:

1. The Immigrant Visa petition was approved on/after August 6, 2002, or

2. The applicant aged out on/after August 6, 2002 (taking any Patriot Act 45 day benefit into account), or

3. The applicant aged out before August 6, 2002 but applied for a visa before aging out and was refused under section 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.

Because there are so many possibilities the eligibility of an applicant for benefits under the aging-out provisions of the CSPA may be determined only at the time a visa application is adjudicated by either a consular officer or a USCIS Adjudications Officer.

The following information is provided to assist individuals who think they may qualify under the aging-out provisions of CSPA and wish to pursue their immigrant visa
application based on those aging-out provisions.

Applicability: The (CSPA) applies to the following immigrant visa categories:

1. Children of U.S. Citizens and Lawful Permanent Residents (LPRs) (IR-2 and F2A principal applicants)

2. Derivative children in all family- and employment-based preference categories (F1, F3, F4, and E categories).

NOTE: The CSPA does not apply to V, K, or any other nonimmigrant visas.

CSPA Age Determination Computation The first inquiry is what immigrant visa category was the applicant petitioned under?

1. If under the Immediate Relative (IR2) category

Was the applicant under 21 years of age when IR2 petition was filed? If the answer is yes, then the applicant may be eligible for CSPA age-out protection.
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2.If under an employment-based or family-based preference category (F1, F2A, F2B, F3, F4, FX, E1, E2, E3, E4, EW)

The following three steps may be used to determine CSPA eligibility for derivative beneficiaries of Employment-based and Family-based Preference petitions.

STEP ONE: Does the CSPA apply to the case?

3. Was the derivative applicant under 21 years of age when the petition was filed?

If the answer is yes proceed to Step 2; if no, CSPA would not apply to the case and the remaining steps are not applicable.

STEP TWO: If the CSPA applies in Step 1, calculate the alien's age for CSPA with the following data:
a. the date a visa number became available for the applicant's use,
b. the applicant's date of birth,
c. the date the visa petition was approved by the USCIS, and
d. the date the visa petition was filed or the priority date.

Enter the data in the table below to calculate the applicant's CSPA age.

The CSPA age of the applicant is determined by taking the age of the applicant when a visa number became available less the time the case was pending with the USCIS.

CSPA Age equals line c (applicant's age when visa available) less line f (time petition pending with USCIS).

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?

For a derivative applicant whose principal applicant obtained an immigrant visa:
1. When did the visa number become available? ________
2.  When did the derivative applicant submit completed Form DS230? ________

If the answer to the second question is within a year of visa number availability, then the applicant may be eligible for CSPA protection.

For a derivative applicant whose principal applicant adjusted status as a Legal Permanent Resident in the U.S.:
1. When did the visa number become available? _______
2. When did the principal applicant file Form I-824 or when did the derivative applicant apply for following-to-join processing? _______

If the answer to the second question is within a year of visa number availability, then the applicant may be eligible for CSPA protection.

Again, the mathematical formula to figure out if a child is eligible for CSPA is the Age of applicant when a visa number became available less Time the case was pending with the U.S. Citizenship Immigration Services

Inapplicability of the CSPA:

Applicants who are in nonimmigrant visa status (e.g., K or V), or filing under the NACARA, HRIFA, Family Unity, or Special Immigrant Juvenile categories will not benefit from the provisions of the CSPA.

Let's look at some examples:

What The CSPA Is Not?

1. 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.

2. 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 has the same adverse effect on immigration eligibility as under previous law.

3. 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 as 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.

4. 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 availability. Due to the length of time that the child must wait for a visa number to become available and backlog reduction initiatives by USCIS that (at least until the recent upsurge in filings around July 2007) have reduced the processing times for many immigrant visa petitions, the formula in CSPA in many cases results in the child being determined to be over the age of 21.

5. 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.

Conclusion:

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, and DV categories.

The CSPA's provisions are not retroactive, they are prospective only. The CSPA benefits only adjustment applicants or immigrant visa applicants where the applicant aged out on or after August 6, 2002 (the "Enactment Date"). If an alien aged out prior to the Enactment Date, the petition must have been filed on or before the Enactment Date, and either:

1. Remained pending as of the Enactment Date; or

2. Been approved before the Enactment Date with an adjustment of status application filed before the Enactment Date with no final determination made prior to the Enactment Date.

The CSPA is a great step in the right direction. The next step, however, must be to find a way to eliminate the backlogs so that families are not waiting 5, 10, or even 15 years for a visa.