The Child Status Protection Act (CSPA) allows applicants for certain immigration benefits to retain classification as a child under the Immigration & Nationality Act (the “Act”), even if he or she has “aged-out.” A child “ages-out” when he or she turns 21 years of age. As a consequence, the child loses preferential immigration treatment provided to children. Under the Act, a child is defined as an unmarried individual under the age of 21.
Prior to CSPA, children who turned 21 before the appropriate application for immigration benefits was adjudicated would age out. CSPA allows the child’s age to be frozen at an earlier date in the process. By freezing the child’s age, it preserves the status of “child” for those who would otherwise “age-out.”
CSPA applies to:
- Children of U.S. Citizens;
- Children of Lawful Permanent Residents (LPR);
- Derivative Beneficiaries of Asylee and Refugee Applicants; and
- Derivative Beneficiaries of Family-Based, Employment-Based, and Derivative Visas
CSPA does not apply to:
- Nonimmigrant Derivatives; (In limited circumstances CSPA may apply to K2 and K4 beneficiaries.)
- Special Immigrant Juveniles;
- Family Unity; and
- Cuban Adjustment
Children of U.S. Citizens
Under CSPA, the children of U.S. citizens are allowed to preserve the status they held at the time their parent filed the I-130 petition. If they were immediate relatives and met the definition of “child” on that date, they will be considered immediate relatives even if they turn 21 before they obtain permanent residency. In other words, they will never “age-out.” However, CSPA will not apply if they marry before immigrating, which means their status will change.
The children of a lawful permanent resident can benefit from CSPA if the LPR parent subsequently naturalizes before his or her children turn 21. The rule only applies to children who are unmarried and under 21 at the time their LPR parent filed the I-130 petition. Under CSPA, the children’s age will freeze on the date the parent naturalized. Further, their petition will convert to immediate relative status which will advance their immigration process.
CSPA does not apply to married children of U.S. citizens. However, if they divorce before turning 21, their age will freeze on the date the marriage legally terminated. Their petition will convert to immediate-relative status. If they divorce after turning 21, CSPA will not apply.
Children of Lawful Permanent Residents and Derivatives
CSPA applies differently to children of non-U.S. citizens. In such cases, the “adjusted” age formula is used to determine whether a child is under 21. Using the “adjusted” age formula, if the child is under 21 the child will be able to preserve his or her status.
Second Preference 2A Category
Children in the second preference 2A category must use the “adjusted” age formula to determine whether they will be able to preserve their status once they turn 21. In order to preserve their status, they must be under 21 using their “adjusted” age on the date the 2A category visa becomes available for their priority date. To calculate their “adjusted” age, subtract from their biological age the number of days the I-130 petition was pending before being approved. If the “adjusted” age is under 21 then their 2A status is preserved. As a requirement, they must seek to acquire lawful permanent resident status within one year of visa availability.
Similarly, derivative children in family-based categories will preserve their derivative status once they turn 21 if their “adjusted” age is under 21 on the date the principal beneficiary’s visa becomes available. To calculate their “adjusted” age, subtract from their biological age the number of days the I-130 petition was pending before being approved. They must also seek to acquire lawful permanent resident status within one year of the date they became current.
CSPA is applicable to various family-based, employment-based, and diversity visa cases. Several factors must be taken into consideration to determine whether a child is able to retain his or her status upon turning 21. You should seek the guidance of a legal expert before proceeding with a complicated case.
Derivative Beneficiaries of Asylees and Refugees
CSPA is applicable to certain derivative beneficiaries of asylum and refugee applicants. Generally, children can retain their derivative status if they are unmarried and under 21 on the date the principal alien applied for asylum. The CSPA rules applicable to refugees are similar to those applicable to asylees. Several requirements must be met in order to preserve a child’s derivative status.
The CSPA rules can be confusing and many of the cases are complex. You should seek legal advice before proceeding with a complicated case.