Did your parents apply for a green card or immigrant visa in your name, but you have since turned 21 years of age before getting it? If you are worried that you’ll now be considered an adult and your application will be denied because of your age, this may not necessarily be true.
The Child Status Protection Act (CSPA) helps children qualify for immigration benefits even though they are no longer minors in the eyes of the immigration service (USCIS). 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.
For a child to be granted lawful permanent resident status in the US based on their parent’s approved petition for a family-sponsored or employment-based visa, they must be under the age of 21.
If somebody is applying for an immigrant visa or a green card as a child but turns 21 before the Consular Officer or USCIS adjudicates their case, they are no longer considered a child in the eyes of immigration law.
This situation is known as “aging out.” 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) in 2002.
This act was introduced to protect children from aging out and alleviate the hardships faced by noncitizens previously classified as children.
This law protects these individuals by classifying them as “children” under the INA, even after turning 21.
In February 2023, the US Citizenship and Immigration Services (USCIS) announced a significant change in policy for determining eligibility for the CSPA.
The new policy change will allow more dependent children than ever before to qualify for protection under the CSPA.
Under the updated policy, USCIS will use the “Dates for Filing” to calculate children’s ages for CSPA protection purposes.
This will give children a better chance of securing their eligibility for permanent residence as dependents of their parents.
Previously, USCIS considered a child’s age “frozen” at the age they were at the time of visa availability.
This can be the date a petition was approved or the first day of the month a visa is available in the Final Action Dates chart as published in the monthly Visa Bulletin.
Now, the child’s age will be frozen when the I-130 or I-485 application is filed based on the Date of Filing Chart, even if a visa number is not yet available under the Final Action Chart.
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:
The Child Status Protection Act does not change the definition of a child. Instead, it involves freezing a noncitizen's age, so they meet the definition of a child purely for 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 an applicant 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 determine 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.
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 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'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.
Get in touch for a free consultation with the Meimaris Law team today to discuss your concerns.