The Child Status Protection Act (CSPA) addressed the long standing issue of children who reach the age of 21 and therefore fall out of the definition of a “child” for immigration purposes or “age out.” It permits certain children over 21 years of age to retain the “child” status and receive immigration benefits.
How to CSPA Works
Preference Classification for Permanent Residence or Derivative
- Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.
- The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
Requires Certain Action to be Taken
- The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.
Individuals may be eligible to apply for permanent residence under CSPA after 1 year of a visa becoming available if all of the following are true:
- They are a beneficiary of a visa petition that was approved prior to August 6, 2002
- They had not received a final decision on an application for permanent residence based or immigrant visa on that visa petition prior to August 6, 2002
- The visa became available on or after August 7, 2001
- They met all of the other eligibility requirements for CSPA (see above)
If a permanent resident petitioner (Green Card holder) filed a Form I-130, Petition for Alien Relative, for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a 1st preference classification. The reason that this may be beneficial is that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. If the beneficiary wants to opt-out, he or she must make a request in writing to USCIS.
Refugee and Asylee Protections
CSPA provides protections for refugee and asylee children who aged out on or after August 6, 2002. The child must remain unmarried to benefit from CSPA protection.
The child’s age is determined based on the time the parent’s Form I-589, Application for Asylum and Withholding of Removal, or Form I-590, Registration for Classification as a Refugee, was filed. After August 6, 2002, as long as the child was unmarried and under 21 at the time either of these forms was filed, and the child was listed on the Form I-589 or I-590, the child will remain a “child” regardless of age and can continue adjustment of status or consular processing on that basis.
For Forms I-730 or I-485, Application to Register Permanent Residence and Adjust Status, (under Section 209) that were pending on or after August 6, 2002, the child’s age is determined by using the age on the date the principal filed Form I-589 or Form I-590, as long as the child was unmarried and under 21 at that time and remains unmarried.