Protecting Children from “Aging Out” of Petitions
The Child Status Protection Act
Michael Phulwani, Esq. and Dev B. Viswanath, Esq.
Child Status Protection Act (CSPA) which offers a method to calculate a person’s age to see of they meet the criteria of a child for immigration purposes. According to the Immigration and Nationality Act (INA) the definition of a child is a person who is both unmarried and under 21 years of age. If an applicant applies for lawful permanent resident (LPR) status as a child but turns 21 before their LPR application is adjudicated, that person will no longer be considered a child for immigration purposes. This circumstance is usually referred to as “aging out” and means that those beneficiaries would have to have a new petition filed for them, which would make the wait period much much longer. To avoid children from “aging out” and having to start all over CSPA was created and went into effect on August 6, 2002.
The meaning of a child did not change under the CSPA. The new calculated age of the child is called “CSPA age” and it allows some beneficiaries to remain classified as a child past their 21st birthday. The beneficiary MUST still be unmarried. The following people may take advantage of the CSPA
- Immediate relatives;
- Family sponsored preference principal and derivative applicants;
- Violence Against Women Act (VAWA) self-petitioners and derivative applicants;
- Employment based preference derivative applicants;
- Diversity immigrant visa (DV) derivative applicants;
- Derivative refuges; and
- Derivative asylees.
If a beneficiary/applicant is applying for a Green Card based on one of the categories above, they are eligible for CSPA consideration if the proper forms were filed or pending on or after August 6, 2002.
Refugees and Asylees: If a beneficiary is a derivative refugee then their CSPA age is their age on the date the principal refugee parent or Form I-730 petitioner filed their I-590. If the beneficiary was under the age of 21 at the time of their parent’s interview, their age froze as of that date and they will not age out. In order to qualify as a derivative refugee, the beneficiary must be unmarried but they do not need to remain unmarried in order to qualify for a Green Card under INA section 209.
If a beneficiary is a derivative asylee their CSPA is their age on the date the principal asylee parents or Form I-730 petitioner filed their Form I-589. If the petitioner was under the age of 21 at the time their parent’s filed Form I-589, their age froze as of that date and they will not age out. In order to be granted derivative asylum and to qualify for a Green Card under INA section 209 the beneficiary must be unmarried.
Immediate Relative: If a beneficiary/applicant is an immediate relative, a VAMA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAMA self-petitioning abused spouse or child of a U.S. citizen, their age is frozen on the date the Form I-130 or Form I-360 was filed. If the beneficiary was under the age of 21 at the time the petition was filed, they are qualified for CSPA and will not age out. The beneficiary must remain unmarried or they will not qualify for CSPA.
Family and Employment Preference and Diversity Visa Immigrants: If a beneficiary is a family preference, employment-based preference, or DV applicant, their CSPA age is calculated by subtracting the number of days their petition was pending from their age on the date an immigrant visa becomes available to them. In order to qualify for CSPA the beneficiary/applicant must remain unmarried. The formula is calculated based on the age of the child when the petition was filed, the number of years for the petition to become approved. The age of the beneficiary when Visa Numbers become available.
If the beneficiary is under this category, in order to use the CSPA age they must pursue to gain lawful permanent resident status within one year of a visa becoming open to them. This is called the “seek to acquire” requirement. If this requirement is not satisfied, USCIS may use its discretion to excuse this requirement if the beneficiary can show that the requirement was not met due to special circumstances. Under the “seek to acquire” requirement the petitioner must:
- Properly file Form I-485; or
- Submit a completed Part One of Form DS-260; or
- Have a Form I-824 properly filed on their behalf.
If an LPR becomes a naturalized citizen before their child receives their Green Card, their child’s petition is converted to either an immediate relative or family first preference case. There are also an additional amount of time that can be calculated to protect a child’s age because of the September 11, 2001 attacks, and the Patriot Act illustrates this additional protection.
The CSPA is the saving grace for so many families that have wait many many years for their opportunity for a green card.