Child Status Protection Act Basics (Part 2 of 2)

The Child Status Protection Act (CSPA) was enacted to preserve family unity. As explained in Part 1 of this article, the CSPA works to “freeze” the age of a qualifying child for immigration purposes. This second and final part focuses on how the CSPA works in the family-based (FB) immigration context.

Direct and Derivative Beneficiaries

As explained in Part 1, the CSPA uses a formula to determine when a child will continue to be treated as under age 21 for immigration benefits, following the child’s 21st birthday. This allows such individuals to receive benefits appropriate for children even when they chronologically do not meet the immigration definition of a child, who is under age 21 and unmarried.

The protection afforded by CSPA applies to both direct beneficiaries and derivative (dependent) beneficiaries. Direct beneficiaries are those on whose behalf an immigrant petition was filed. Derivative beneficiaries are those who benefit as family members of a direct beneficiary of an immigrant petition.

Direct Beneficiaries: Immediate Relatives of U.S. Citizens

Children of U.S. citizens can qualify for lawful permanent resident (LPR or “green card”) status in the immediate relative category. This favorable category has visa numbers immediately available. Thus, as long as the I-130 relative petition is filed before the child-beneficiary turns 21, the child’s age is frozen, for immigration purposes, as of the date of filing. Thanks to the CSPA, the beneficiary who is under 21 when such a case is filed remains eligible for the immediate relative child category, even after chronologically reaching the age of 21.

In a related example, an LPR parent could file an I-130 petition on behalf of a child in the family-based, second preference “A” (FB2A) category for children of LPRs. The filing parent may later naturalize to U.S. citizenship. If the naturalization of the parent occurs while the child is still under 21, the child’s age freezes as of the date of naturalization. That is, it is treated just like the example above of a U.S. citizen parent filing an I-130 for a minor child.

Direct Beneficiaries: FB2A Preference Classification

Direct beneficiaries of family preference petitions may benefit from the CSPA, even if, unlike the example above, the parent does not naturalize. This benefit extends, for example, to children of LPRs who are sponsored in the FB2A preference classification. In these cases, the child’s age is calculated by using the standard CSPA formula. That is, the child’s age for immigration purposes is the actual age on the date the priority date becomes current on the final action (FA) chart, or the I-130 petition is approved, whichever is later, reduced by the number of days the immigrant petition was pending.

Example of FB2A for a Child

The following scenario illustrates the application of CSPA in this case.

An LPR parent filed an I-130 petition for a child. The I-130 petition was approved six months later, at a time when the priority date was not current. The priority date became current at a later point, which fell five months after the child turned 21 years of age. The child’s age for CSPA purposes is the actual age on the date the priority date became current (21 years and 5 months) minus the time the petition was pending (6 months). Therefore, the child’s age is frozen at 20 years and 11 months. As long as the child remains unmarried and takes appropriate steps within 1 year, s/he generally will remain protected under CSPA.

CSPA Benefits for Derivative Beneficiaries

Derivative beneficiaries are those who may be able to immigrate as relatives of a primary beneficiary. For instance, the family-based, fourth preference (FB4) classification currently allows U.S. citizens to sponsor their siblings; the family-based, third preference (FB3) is reserved for married sons and daughters of U.S. citizens. If a primary beneficiary has a spouse and/or child/ren, these derivative family members are eligible to immigrate with the primary beneficiary. However, due to the long waiting times for visa number availability, the derivative children beneficiaries in such cases run the risk of aging out of their eligibility before the priority date ever becomes current. The CSPA provides possible protection for these individuals, under the standard formula.

Conclusion

The CSPA contains many confusing elements, with numerous nuances and gray areas within the law that are regularly challenged in court. The CSPA can have wide application throughout family cases. There are also special rules for diversity visa lottery winners, asylees, and refugees. The Murthy Law Firm has experienced attorneys in this area of the law and would be pleased to provide advice on these complex matters.

[See also, Child Status Protection Act Basics (Part 1 of 2).]

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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