Child Status Protection Act Basics (Part 1 of 2)

One motivating factor for many people in the decision to immigrate to the United States is the potential opportunities for their children. For years, parents of children born abroad faced the possibility of family separation if their children turned twenty-one years of age prior to obtaining permanent resident (commonly, “green card”) status. The law in this area changed over a decade ago with the passage of the Child Status Protection Act (CSPA). This put into place a formula for determining whether a son or daughter may continue to be classified as a child when applying for an immigration benefit, even though s/he has reached twenty-one years of age.

Background on CSPA

The CSPA amended the Immigration and Nationality Act (INA) by changing when a person is classifiable as a “child” for most types of green card cases. Under the CSPA, certain individuals are considered to be under the age of 21 years for purposes of enjoying immigration benefits, notwithstanding their actual chronological age of 21 or older. This law was enacted to provide relief to children who otherwise would “age out” of eligibility to obtain immigration benefits upon reaching the age of 21 before they are able to become lawful permanent residents (LPRs) with their parents.

The CSPA took effect on August 6, 2002, and generally only applies to cases filed on or after that date. There are some exceptions for petitions filed before that date, but they are outside the scope of this article. In addition, the CSPA does not apply to derivatives of nonimmigrant visas, including K and V, NACARA, HRIFA, Family Unity, Cuban Adjustment, or Special Immigrant Juvenile applicants.

Definition of “Child” Under Immigration Law

Under the INA, the term child, for immigration purposes, is defined as a person who is unmarried and under the age of twenty-one. There are special provisions for adopted children and stepchildren, which are beyond the scope of this article.

CSPA Formula

Under the CSPA, a child’s age is calculated by looking at the actual age on the date that the priority date for the green card case became current on the final action (FA) chart, or the date on which the underlying immigrant petition (on form I-130, I-140, I-360, I-536, or diversity visa) was approved, whichever is later, and subtracting the number of days that the petition was pending, to obtain the child’s CSPA age.

The longer the immigrant petition remains pending with the U.S. Citizenship and Immigration Services (USCIS), the greater the number of days the child’s chronological age is reduced, for purposes of determining her/his CSPA age. For this reason, in many situations, applicants with children may wish to forgo using premium processing when filing the I-140 petition.

This CSPA age-out protection is given provided that the “child” seeks to acquire permanent resident status within one year of the priority date becoming current. These provisions apply to both direct beneficiaries and derivative (dependent) beneficiaries. A direct beneficiary in this type of situation typically is an unmarried child under 21 who is sponsored by an LPR parent in the family-based, second preference (FB2) category. A derivative beneficiary is someone who is not directly sponsored by the petitioner, but who potentially can benefit from an immigrant petition filed on behalf of a parent. Even if the child’s age is protected under the CSPA, the individual must be unmarried in order to be considered a child.

In short, the CSPA temporarily “freezes” the child’s age, based upon the triggering event/s described above. This, in turn, may allow the young adult to receive a green card through classification as a “child” at some point in the future.

Must Use Final Action Chart Dates to Qualify for CSPA Benefits

In May 2018, the USCIS issued policy guidance to clarify that the date listed in the FA chart, and not the one in the more favorable dates for filing (DF) chart, is the date the foreign national must use for purposes of qualifying for immigration benefits under the CSPA. So, even if a person is able to apply for adjustment of status (form I-485) based on the DF chart, the application ultimately can be denied if the applicant ages out by the time the priority date becomes current under the FA chart. More information on the dual chart visa bulletin system is available in the MurthyDotCom InfoArticle, Priority Dates: How Does the Visa Bulletin Work? (25.Mar.2019).

Conclusion

The CSPA provides an improved level of protection against aging out for children. However, many of the details within CSPA law have not been clarified and interpreted by regulations, leaving many gray areas within the law. Therefore, even after more than a decade, the CSPA remains a very “hot” and evolving area of U.S. immigration law. Attorneys at the Murthy Law Firm are available to help answer questions about the CSPA, and for devising strategies and solutions to help preserve family unity.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

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