Have you applied for a green card or immigrant visa for your child and he/she turned 21 years of age before getting it? If you are worried that your child will now be considered an adult and your application will be denied because of your childâ€™s age, this may not necessarily be true.
The Child Status Protection Act (â€œCSPAâ€) helps children qualify for the immigration benefit even though they are no longer minors in the eyes of the immigration service (â€œUSCISâ€). Their case will continue to be processed if certain conditions are met.
Find out more about the Child Status Protection Act in our blog and get the help you deserve to get your application approved.
According to the Immigration and Nationality Act (INA), a child is a person who is unmarried and below the age of 21.
If somebody is applying for an immigrant visa or a green card as a child but turns 21 before their case is adjudicated by the Consular Officer or USCIS, they are no longer considered a child in the eyes of immigration law.
This situation is known as â€œaging out.â€ It means the applicant must file a new application as an adult in a new preference category and wait longer to receive their green card. In some cases, they might not even be eligible for a green card.
Congress realized that many children were starting to age out due to the backlog of applications the USCIS had to go through. Because of this delay in processing applications, Congress enacted the Child Status Protection Act (CSPA).
This act was introduced to protect children from aging out if they met specific requirements.
The Child Status Protection Act does not change the definition of a child. Instead, it provides a method for calculating a person's age to see if they meet the definition of a child for purely immigration purposes.
This calculated age is known as a child's CSPA age, allowing some people to be classified as a child even after their 21st birthday.
CSPA does not change the fact that you must remain unmarried to stay eligible for classification as a child.
If you're married, but your CSPA age matches the requirement, you still won't be able to apply for a green card as a child.
The Consular Officer or USCIS Officer adjudicating the case will make the determination as to whether the applicant aged out for the benefit. CSPA applies to the following categories of people:
When you're applying for an immigrant visa or green card as a child based on one of the categories above, then you will be eligible for CSPA consideration.
The CSPA will be considered and applied to beneficiaries to determine whether they aged out in cases where one of the following forms was filed or pending on or after Aug. 6, 2002:
If you're a derivative refugee, your CSPA age is based on the age on your principal refugee parent's Form I-730 or Form I-590. These forms will have the date of your parents' USCIS interview.
If you were under 21 during the time of your parent's interview, then your age is frozen based on that date, and you will not age out.
When applying, you must be unmarried, or you won't qualify for admission into the US as a derivative refugee.
If you're a derivative asylee, then your CSPA age is the age on the date of your principal asylee parent's Form I-730 or Form I-589. You won't age out if you were under 21 when these forms were filed.
Derivative refugees can apply for a green card, married or unmarried. But if you're a derivative asylee, you must remain unmarried when applying for your green card under section 209 of the INA.
If you are:
Then your age is frozen to the date that Form I-130 or Form I-360 was filed.
If you were under 21 when these forms were filed, you're eligible for CSPA and won't age out. But, you must stay unmarried to qualify for CSPA.
If you're a family preference, employment-based preference, or a DV (diversity visa) applicant, then your CSPA age is calculated a bit differently.
It's calculated by subtracting the days your application has been pending from your age on the date your immigrant visa will become available.
To qualify for CSPA this way, you must stay unmarried.
This date can mean one of these two dates:
For DVs, it's the first day when the Department of State can allocate a visa number to you.
The pending time relates to the length of time your petition was pending. It's the number of days between when it was filed to the approval date.
If you have multiple approved petitions, then your CSPA age is calculated using the petition underlying the adjustment of the status application.
Suppose you want to benefit from CSPA as a family preference, including VAWA, employment preference, or DV applicant. In that case, you must acquire lawful permanent resident status within a year of a visa becoming available.
This is known as the sought to acquire requirement.
If you're confused about the applicability of the CSPA through family preference, employment preference, or diversity visa immigrants, then we recommend getting help from an immigration law professional to make sure you're eligible.
Unsure of what to do next concerning the CSPA? Consider talking to an experienced team of immigration lawyers to help you figure out the next steps.
The team at Meimaris Law can help you to understand how the CSPA will affect your particular case.
With over 25 years of experience in immigration law, we feel confident in our ability to guide you.