Protecting Children From “Aging Out” of Petitions the Child Status Protection Act

 Protecting Children from “Aging Out” of Petitions

The Child Status Protection Act

By

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 under the age of 21 and is not married is considered a child under the Immigration and Nationality Act (INA). A petitioner will no longer be considered a child for immigration purposes if they apply for lawful permanent resident (LPR) status as children but turn 21 before their LPR application is approved. This is typically referred to as "aging out," and it means that petitioners will either need to submit a new application or petition or that their petition category will change to "adult." In either case, they will have to wait even longer for a Green Card, or they may no longer be eligible for one. CSPA was created on August 6, 2002, to prevent children from "aging out" and having to start over.

The CSPA did not alter the definition of a child. The "CSPA age," the child's newly calculated age, enables some petitioners to continue to be considered children after turning 21. The beneficiary must remain single. The following individuals may profit from the CSPA's immediate relatives:

Principal and derivative preference applicants sponsored by the family;

Self-petitioners and derivative applicants under the Violence Against Women Act (VAWA);

Applicants with employment-based preference derivatives;

Applicants for the Diversity Visa (DV) derivative;

Refugees from derivatives; and derived Asylum Visa seekers.

If a petitioner is applying for a Green Card in one of the aforementioned categories, they are eligible for CSPA consideration provided that the appropriate forms were filed or pending on or after August 6, 2002.

Asylees and refugees: The petitioner's CSPA age is based on the date the principal refugee parent or Form I-730 petitioner filed their I-590 if the petitioner is a derivative refugee. The petitioner's age will not be determined if they were younger than 21 at the time of their parent's interview. The petitioner 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 CSPA of a petitioner who is a derivative asylee is their age on the date that the principal asylee's parents filed their Form I-589 or Form I-730. 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 petitioner must not be married in order to be eligible for a Green Card and receive derivative asylum.

Relative Right Now: The petitioner'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 petitioner is eligible for CSPA and will not age out if they were under 21 at the time the petition was filed. The petitioner will not be eligible for CSPA if they are still single.

Immigrants with Family, Employment, and Diversity Visas: The applicant'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, regardless of whether they are a family preference, employment-based preference, or DV applicant. The petitioner must remain unmarried in order 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 petitioner 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 petitioner can demonstrate that the requirement was not met due to special circumstances, USCIS may use its discretion to excuse this requirement if it is not satisfied. 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.