While applying for an immigrant visa, one of the main concerns of parents is the ability to immigrate with their family members, especially their children. In determining whether their children can immigrate immediately, their age and marital status are key factors. For immigration purposes, a ‘child’ is defined as being ‘unmarried and under 21.’ Children of any age are referred to as ‘son or daughter.’
Due to the backlogs and long processing times for some visa petitions, it is very likely that a child will have ‘aged out’ prior to their visa number becoming current. The Child Status Protection Act (CSPA) was enacted on August 6, 2002 to help prevent such negative immigration consequences from occurring when a child reaches the age of 21. In particular, the CSPA is designed to protect beneficiaries from aging out due to excessive processing times. The CSPA applies to family-based immigrants, employment-based immigrants, and some humanitarian program immigrants.
For petitions by U.S. citizen parents, this process is relatively straightforward. The child needs to be petitioned for before turning the age of 21. For all other family and employment-based petitions, this process becomes much more complicated.
In accordance with CSPA, a two-step formula exists to protect the child from aging out in employment-based immigration processes.
Step 1: Calculate the child’s age
(a) Determine the beneficiary’s age on the date that a visa number becomes available. The date that a visa becomes available is the later of (i) the first day of the month of the Department of State Visa Bulletin, which indicates availability of a visa for that preference category, or (ii) the petition approval date if a visa number is already available on the approval date.
(b) Subtract the number of days that a petition is pending from the child’s age in (a). The number of days that a petition is pending is the number of days between the date that the petition is properly filed (Form I-140 is considered properly filed on the receipt date and not priority date) and the date an approval is issued on the petition.
Step 2: “Seek to Acquire”
If the beneficiary’s calculated age in Step 1 is under 21, they may benefit from the CSPA if the beneficiary ‘seeks to acquire’ the status of a Lawful Permanent Resident (LPR) within one year of visa number availability.
USCIS has determined that a beneficiary has ‘sought to acquire’ permanent residence in three circumstances: (i) Filing Form I-485, Application to Register Permanent Resident or Adjust Status; (ii) Submitting Form DS-230 or DS-260, Application for Immigrant Visa and Alien Registration; or (iii) having Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf.
The following examples show how CSPA would be applied in employment-based petitions:
- An I-140 immigrant visa petition was filed in 2002 when the derivative beneficiary was 20. The visa petition is approved exactly one year later in 2003. A visa becomes available exactly 5 years later in 2008 and the principal and beneficiary file an I-485 immediately. The derivative beneficiary’s ‘age’ for CSPA purposes would be 24 (the beneficiary is 25 in 2008 when the visa becomes available, and the visa petition was pending for 1 year). Although the beneficiary ‘sought to acquire’ LPR status within one year of the visa becoming available, he would still not be able to retain classification as a child because he is over the age of 21.
- An I-140 immigrant visa petition was filed in 2005 when the derivative beneficiary was 20 years, 9 months. The visa petition is approved after 7 months, at which time the derivative beneficiary is 21 years, 4 months old. The visa is available at the time the petition is approved. The beneficiary then initiates Consular Processing 10 months later. The beneficiary would be able to retain classification as a child. The derivative beneficiary’s ‘age’ for CSPA purposes would be 20 years, 9 months (the beneficiary is 21 years, 4 months when the visa becomes available, and the visa petition was pending for 7 months). The beneficiary then sought to acquire LPR status within one year of the visa becoming available. His status would therefore be protected under the CSPA and he will not ‘age out’ no matter how long Consular Processing takes.
In summary, the CSPA is a complicated and case specific relief that has solved the age-out problem for many beneficiaries. Although the CSPA will help many children immigrate faster, there are still many nuances to keep in mind. It’s important to keep in mind that although filing a petition before a child turns 21 can prevent a child from ‘aging out’, this may not be the only step needed to reap the benefits of the CSPA.
Daphne F. Wang is an Associate Attorney at Nguyen & Chen, LLP. Licensed to practice law in the State of Texas, her practice focuses on all aspects of Immigration Law. Daphne obtained her B.A. in Government from the University of Texas at Austin and her J.D. from the University of Houston Law Center.