Protecting Children from “Aging Out” of Petitions
The Child Status Protection Act
By
Michael Phulwani, Esq. and Dev B. Viswanath, Esq.
The Child Status Protection Act (CSPA) provides a method for determining an individual's age to determine whether or not they meet the criteria for being a child for immigration purposes. A person who is both unmarried and under the age of 21 is considered a child under the Immigration and Nationality Act (INA). A person will no longer be considered a child for immigration purposes if they apply for lawful permanent resident (LPR) status as a child but turn 21 before their LPR application is approved. Typically referred to as "aging out," this situation would necessitate the filing of a new petition on behalf of the beneficiaries, which would significantly extend the waiting period. CSPA was created on August 6, 2002, to prevent children from "aging out" and having to start over.
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The CSPA did not alter the definition of a child. The new age that is calculated for the child is known as the "CSPA age," and it enables some beneficiaries to continue to be counted as children even after they turn 21. The beneficiary must remain single. The following individuals may profit from the CSPA's immediate relatives:
- Principal and derivative applicants with preference sponsored by family;
- Self-petitioners and derivative applicants under the Violence Against Women Act (VAWA);
- Applicants with a preference for employment-based preferences;
- Applicants for the Diversity Visa (DV) derivative;
- Refuges derived from and derived from asylum seekers.
If the appropriate forms were filed or pending on or after August 6, 2002, a beneficiary or applicant applying for a Green Card based on one of the aforementioned categories is eligible for CSPA consideration.
Asylees and refugees: The beneficiary's CSPA age is based on the date the principal refugee parent or Form I-730 petitioner filed their I-590 if the beneficiary is a derivative refugee. If the beneficiary was under 21 at the time of their parent's interview, they will not age out because their age has frozen as of that date. The beneficiary must not be married in order to be considered a derivative refugee, but they are not required to remain so in order to be eligible for a Green Card under INA section 209.
The beneficiary's CSPA is the beneficiary's age on the date the principal asylee's parents or the Form I-730 petitioner filed their Form I-589 if the beneficiary is a derivative asylee. If the petitioner was younger than 21 when their parents filed Form I-589, they will not age out because their age froze on that date. Under INA section 209, the beneficiary must not be married in order to receive derivative asylum and a Green Card.
Relative Right Now: The beneficiary or applicant's age is frozen on the date the Form I-130 or Form I-360 was filed if they are 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. The beneficiary is eligible for CSPA and will not age out if they were under 21 at the time the petition was filed. The beneficiary will not be eligible for CSPA if they marry again.
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Immigrants with Family, Employment, and Diversity Visas: The beneficiary's CSPA age is calculated by deducting the number of days their petition was pending from their age on the date an immigrant visa becomes available if the beneficiary is a family preference, employment-based preference, or DV applicant. The beneficiary or applicant must remain unmarried to be eligible for CSPA. The number of years it took for the petition to be approved, as well as the child's age at the time the petition was filed, are used to calculate the formula. the beneficiary's age at the time Visa numbers become available.
If the beneficiary falls into this category, they must pursue legal permanent resident status within a year of receiving a visa in order to use the CSPA age. The "seek to acquire" requirement refers to this. If the beneficiary can demonstrate that the requirement was not met due to special circumstances, USCIS may waive this requirement if this requirement is not met. The petitioner must, in accordance with the "seek to acquire" requirement:
Completely submit Form I-485, or fill out and submit Part One of Form DS-260, or have someone else file a completed I-824 on their behalf.
The petition of the LPR's child becomes either an immediate relative case or a family first preference case if the LPR becomes a naturalized citizen before their child receives their Green Card. The Patriot Act exemplifies an additional amount of time that can be calculated to safeguard a child of a certain age in light of the attacks of September 11, 2001.
The CSPA is a lifeline for many families who have been waiting for years for a chance to get a green card.
