The Child Status Protection Act (CSPA) was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can be long. It is meant to insure that sons and daughters can immigrate to the US together with their parents.
Prior to CSPA, once a child turned 21 years of age, he or she “aged-out” and was no longer able to immigrate (or adjust status) along with his or her parents. CSPA “freezes the age” of immediate relative children when their petitioning U.S. citizen parent submits a visa petition on their behalf; when a petitioning permanent resident parent naturalizes; or when a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.
You can stay up-to-date with the waiting times in the Visa Bulletin by subscribing to our Free E-Mail Newsletter.
CSPA also creates a mathematical formula which allows the amount of time that a visa petition was pending to be subtracted from a child’s age at the time that the priority date becomes current.
“After wasting thousands of dollars on other lawyers, Mr. Shusterman was life saver. I recommend him hands down!”
Zoom Consultations Available!
Related Pages:
The Child Status Protection Act is divided into the follow subtopics:
What happens if a child “ages-out” despite the mathematical formula?
Again, the Child Status Protection Act provides relief for “aged-out” children in the form of the “automatic conversion” clause. However, on June 9, 2014, the Supreme Court deferred to the restrictive definition of this clause which was promulgated by the BIA.
CSPA also contains an “opt-out” clause which permits an unmarried adult son and daughter of a U.S. citizen to choose between the family-based 1st and 2B preference categories depending on which category allows him/her to reunite with their parent faster.
CSPA is applicable not only to persons who were sponsored for lawful permanent residence after the law took effect, but to many people who were sponsored for green cards prior to August 6, 2002.
On February 14, 2018, the US Court of Appeals for the 9th Circuit issued a decision which expanded the capacity of CSPA to keep immigrant families together. See CSPA: Rodriguez Tovar Decision Could Help Keep Families Together
Q1. What is the Child Status Protection Act (CSPA)?
A. On August 6, 2002, President Bush signed the Child Status Protection Act into law. It will help prevent negative immigration consequences from occurring when a child turns 21 years of age before the INS or the State Department processes his application for permanent residence.
Q2. When did CSPA become effective?
A. It became effective as soon as it was signed into law on August 6, 2002.
Q3. Will the law apply to applications for permanent residence based on family-based petitions, employment-based categories and the visa lottery?
A. It applies to applications in all three categories.
“I’ve had a decade of experience with Mr. Shusterman’s law firm. I used them for my immigration needs from H1 to citizenship. It is safe to say this is one of the most competent, professional and knowledgeable law firms. If there is a firm that can handle any possible immigration case routine or otherwise; then this is it.”
Zoom Consultations Available!
Q4. What is the object of the law?
A. An unmarried child under 21 years of age who is eligible for permanent residence is entitled to certain benefits. For example, if his parent(s) are U.S. citizens, the child is considered an “immediate relative” and may obtain a green card without any numerical limitations. However, once he becomes 21 years of age, he no longer qualifies as an immediate relative, and must wait years to become a green card holder.
Similarly, a child who is immigrating along with his parents is no longer entitled to do so once he turns 21 years of age. When a child turns 21, and loses immigration benefits, this is commonly known as “aging-out”. The law seeks to prevent the unnecessary separation of parents and children due to aging-out.
Q5. Can a son or daughter over 21 years of age qualify as an immediate relative?
A. Yes. The following examples may be helpful:
Q6. If the son or daughter cannot have his/her age frozen as an immediate relative, can he/she still qualify for a green card even after turning 21 years of age?
A. Here the calculation becomes a bit more complex. Again, let’s use an example to illustrate how the new law operates.
The family consists of a husband, wife and their two daughters, aged 18 and 15. The father is a programmer/analyst. His employer submits an application for an alien labor certification on his behalf. When the application is approved, the employer submits an EB-3 visa petition on behalf of the father. The petition is approved six months later, three months after the eldest child turns 21 years of age. Under the old law, the 21-year-old has aged out.
However, under the new law, his age is fixed as of the date that a visa number becomes available “reduced by” the number of days that the EB-3 visa petition was pending. Since the petition was pending for six months, these six months must be subtracted from the child’s age when a visa number became available (21 years and 3 months).
Therefore, the daughter’s age is fixed at 20 years and 9 months. This means that she is still considered a “child” for purposes of accompanying her parents in adjusting status to permanent residence. The Child Status Protection Act provides that she must “seek to acquire” permanent residence within one year of a visa number becoming available in order to take advantage of this provision of the law.
If the calculation had resulted in the daughter’s age being fixed at 21 or older, the new law provides that she would be automatically reclassified to an appropriate category, presumably family-based 2B, and that she retain her father’s original priority date. This would be the date that his employer submitted the labor certification application.
Q7. I was born in the Philippines in 1970. My father submitted a family-based 2B visa petition (unmarried adult son or daughter of a permanent resident) for me many years ago. Just before I was ready to immigrate to the U.S., my father became naturalized as a citizen of the United States. I was recently interviewed at the U.S. Embassy in Manila.
When I told them that my father had naturalized, they informed me that I would have to wait many more years to become a permanent resident. They said that his naturalization converted my petition from the 2B category to the 1st preference category. For Filipinos, the 1st preference category is more backlogged than the 2B category. What can I do?
A. Don’t blame your father. Hundreds, perhaps thousands, of Filipinos with petitions pending for their sons and daughters have naturalized, incorrectly assuming that this would shorten their waiting times to become permanent residents. In fact, this actually makes the waiting time much, much longer.
Now, under the new law, you can submit a written statement to the INS stating that you do not wish to have your petition converted from the 2B category to the 1st preference category. If the conversion has already taken place, you can request that it be revoked.
Q8. Is there any provision of the new law which affects asylees and refugees?
A. Yes. The new law provides that a child who turns 21 years of age while his parent’s request for asylum or application for refugee status is pending may accompany or follow to join the parent once he is granted asylee/refugee status. The new law also allows such a child to adjust status as an asylee/refugee.
Q9. When will the government issue regulations to implement the new law?
A. Who knows? We are still waiting for regulations to be issued to implement certain provisions of the immigration laws enacted in 1996. Since certain provisions of the Child Status Protection Act are time-sensitive, you must act in a timely fashion in order to preserve your rights.
However, the USCIS and the State Department have issued numerous memos interpreting the law.
Q10. Is the new law retroactive?
A. In some cases, yes.
It may apply to an alien who is the derivative beneficiary or any other beneficiary of a family-based (FB) or employment-based (EB) petition even if the petition was approved prior to the effective date of the law in some cases. See section 8 of CSPA.
It also applies to FB and EB petitions and DV lottery applications pending on the date of the law’s enactment.
In simple English, even if a child appeared to have “aged-out” prior to August 6, 2002, but under the new law his “immigration age” is under 21, he may still be able to apply for adjustment of status or an immigrant visa for a limited period of time using his original priority date and preference category.
