Child Status Protection Act
The Child Status Protection Act (“CSPA”) was enacted on August 6, 2002 to address the problem of minor children losing their eligibility to obtain permanent residence (greencard) because of government delays. Historically, a child must be issued an immigrant visa or granted permanent residence status before reaching 21 years old. In these situations, the child “aged-out” and would be subject to longer backlogs and waiting periods under a lower visa preference category. What CSPA does is protect the child’s immigration classification by “freezing” the child’s age at the time the visa petition is filed.
To qualify for CSPA, the child must be (1) a beneficiary (derivative or principal) of a pending or approved petition on or after August 2, 2002, (2) no final determination was made prior to CSPA being enacted on any pending petition or application, and (3) the child “seeks to acquire” lawful permanent residence within a year of the visa becoming available.
CHILDREN OF US CITIZENS
Children of U.S. citizens who are under 21 at the time their parent filed the immigrant visa petition (Form I-130) will still be considered immediate relatives even if they turn 21 before they apply for their green card. CSPA freezes the age at the time the petition is filed.
Under the old law, immediate relative children who turned 21, would move to the first preference category. Under the new law, they would remain immediate relatives. However, those who are unmarried but have a dependent child, may prefer to change to the first preference category so that their child will be able to obtain a green card with them. In this situation, the applicant can opt out of the immediate relative category and move to the first preference category.
Lawful permanent residents who become US citizens will still be able to immigrate their children if their children were under 21 at the time the LPR became a citizen. The children would be classified as immediate relatives.
CHILDREN OF LEGAL PERMANENT RESIDENTS AND DERIVATIVES
Children whose legal permanent resident (LPR) parent filed a second preference A petition for them and subsequently turn 21, may still be able to obtain a green card under the second preference A category. Under the old law, the petition was automatically converted to second preference B. However, under CSPA, the child may still be able to obtain a green card if their adjusted age is under 21. The adjusted age is calculated based on the biological age at the time the second preference A petition priority date became current minus the number of years the petition was pending with the USCIS.
Derivatives of employment based or diversity lottery petitions are also eligible if they meet the same criteria. The adjusted age is calculated based on the biological age at the time the principal beneficiary’s priority date became current minus the number of years the petition was pending with the USCIS.
OPTING OUT OF FIRST PREFERENCE
Under the old law, beneficiaries of second preference B petitions would automatically be upgraded to first preference upon the naturalization of the LPR parent. Under CSPA, these beneficiaries have the option of remaining in the second preference B category. This option is ideal for beneficiaries born in the Philippines since the waiting period for first preference petitions can be more than 8 years.
CHILDREN OF ASYLEES AND REFUGEES
Children of asylees and refugees who turn 21 are still eligible to obtain a green card if they were under 21 at the time their parent applied for asylum or refugee status.
Please contact our office to determine if you may qualify under CSPA and whether government interpretations of CSPA may benefit your case.