For many green card cases, a child must be unmarried and under the age of 21 in order to obtain a green card. The Child Status Protection Act (CSPA) is a U.S. law that was enacted in 2002 to address the issue of aging out for certain children of family-sponsored and employment-based immigrant visa petitions. Aging out occurs when a child reaches the age of 21 before the completion of the immigration process, potentially resulting in the loss of their eligibility for a green card as a derivative beneficiary.
Key Provisions of the Child Status Protection Act include:
Age Freeze: Under CSPA, the age of a child is “frozen” on the date the visa petition is filed on their behalf. This means that the child’s age is calculated based on the time that the visa petition (Form I-130 or I-140) is filed, rather than the age at the time the immigrant visa becomes available. Depending on the country of origin, some individuals wait 8-10 years for an immigrant visa to become available.
Formula for Calculating Age: CSPA provides a formula for calculating the “CSPA age” by subtracting the time that the visa petition was pending (the time it took USCIS to adjudicate the petition) from the child’s biological age. The resulting age is used to determine whether the child remains eligible for derivative immigration benefits.
Applicability to Different Immigration Categories: CSPA is applicable to both family-sponsored and employment-based immigration categories, including immediate relatives, family preference categories, and employment-based preference categories.
Retention of Priority Date: If a child ages out but remains eligible under CSPA, they can retain the priority date of the original visa petition. This is important because it determines the child’s place in the queue for an immigrant visa.
Applicability to Adjustment of Status and Consular Processing: CSPA provisions apply to both adjustment of status applicants in the United States and those processing through U.S. consulates abroad.
Applicability to Diversity Visa Lottery Winners: CSPA also provides protections for certain individuals who win the Diversity Visa (DV) Lottery, allowing them to retain eligibility even if they age out.
CSPA Applicability and Eligibility
CSPA applies only to the following people:
• Immediate relatives (including derivatives of widow(er)s);
• Family-sponsored preference principal applicants 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 refugees; and
• Derivative asylees.
Suppose you are applying for a Green Card based on one of the categories above. In that case, you are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status, or one of the following underlying forms was filed or pending on or after Aug. 6, 2002:
• Form I-130, Petition for Alien Relative;
• Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
• Form I-140, Immigrant Petition for Alien Worker;
• Form I-526, Immigrant Petition by Alien Entrepreneur;
• Form I-589, Application for Asylum and for Withholding of Removal;
• Form I-590, Registration for Classification as a Refugee; or
• Form I-730, Refugee/Asylee Relative Petition.
CSPA for Refugees and Asylees
If you are a derivative refugee, your CSPA age is your age on the date your principal refugee parent or Form I-730 petitioner filed his or her I-590, which is the date of his or her interview with a USCIS officer. If you were under the age of 21 at the time of your parent’s interview, your age is frozen as of that date, and you will not age out. While you must be unmarried to qualify for admission into the U.S. as a derivative refugee, you do not need to remain unmarried to qualify for a Green Card under INA section 209.
CSPA for Immediate Relatives
Suppose you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen. In that case, your age is frozen on the date Form I-130 or Form I-360 is filed. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. However, you must remain unmarried to qualify.
CSPA for Family and Employment Preference and Diversity Visa Immigrants
If you are a family preference (including VAWA self-petition), employment-based preference, or diversity visa (DV) applicant, calculate your CSPA age by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at the time of visa availability). However, you must remain unmarried in order to qualify.
CSPA for K-2 and K-4 Nonimmigrants
While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances.
Limited CSPA Coverage for K-2 Nonimmigrants
As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fiancé(e) of a U.S. citizen), you typically get a Green Card based on your admission into the U.S. with a K-2 visa and your K-1 parent’s marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the United States as a K-2 nonimmigrant, you will not age out of eligibility for a Green Card. In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card.
It’s important to note that the application of CSPA can be complex, and its provisions may vary depending on the specific circumstances of each case. USCIS and the Department of State have provided guidelines and regulations to implement CSPA, and individuals are often encouraged to seek legal advice to navigate the complexities of the law.
As promised, here’s some bonus information that you may not know about:
Naturalization of the Petitioner in Family Preference Cases
When a lawful permanent resident (LPR) files a Form I-130, Petition for Alien Relative for his or her child or unmarried son or daughter, the petition is classified as a family second preference case. Suppose the petitioner naturalizes (becomes a U.S. citizen) before the child or unmarried son or daughter gets a Green Card. In that case, the petition is converted to an immediate relative or family first preference case.
Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative)
If your LPR parent filed a Form I-130 for you as his or her child and your parent became a U.S. citizen before you turned 21, your age “freezes” on the date your parent became a citizen. You become an immediate relative and will not age out.
Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1)
If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you usually would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). However, you may opt out of the automatic conversion and stay in the second preference classification (F2B) if the waiting time for the second preference visa is shorter than that for the first preference visa.
Last but not least, be sure to check the caption below this video. We’ve got questionnaires for different types of visas so that we can help you determine which visa is most appropriate for you. And if you’re traveling soon, we also have a list of some of my travel favorites.
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