How does the CSPA change the law?
Before the CSPA was passed, US immigration law was very inflexible in its treatment of children who turned 21 years old or who married. Turning 21 (“aging out”) or marrying was not cause to celebrate for immigration purposes, as it caused the applicant to be reclassified from “child” to “son or daughter”. As a result, the applicant would either lose eligibility to apply for permanent residency, or the application for permanent residency would be reclassified to a lower preference category, causing up to several years of a wait before the visa number would become available under the quota system.
(For a description of the preference categories and their current 'priority dates', please refer to our website under 'Current Visa Bulletin').
In many crucial circumstances, CSPA allows applicants to maintain their “Child” status even after “Aging Out”.
What kinds of applications does the CSPA apply to?
CSPA applies to how dependents are treated in the context of their parents’ family, employment-based petitions, diversity visa (lottery) applications, applications for asylum and refugee status, and naturalization applications.
When did the CSPA become effective?
CSPA became a law on August 6, 2002, and applies to all petitions which were pending on the day it became effective. Importantly, it can also have a retroactive effect on some cases. It can still benefit an applicant "if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition".
How does CSPA apply to change if a child is classified in family-based cases?
It depends on the type of family-based case. A few hypothetical situations will help to clarify:
Because CSPA freezes your child’s age at the date your I-130 immigrant visa petition is filed, your child is categorized as an “immediate relative” even after She/he turns 21. There is no immigrant visa quota applied to immediate relatives and thus your child will be able to immigrate regardless of his/her age. Under prior law, your child would no longer be classified as an “immediate relative” once she/he turns 21 because she/he is no longer a “child” but has rather become your “son/daughter”. Your petition would be converted to the less preferable “first preference” family category and would be subject to a waiting period of several years before the application’s “priority date” would become current. Under CSPA, your child remains an “immediate relative”.
The day you become naturalize, CSPA will freeze your child's age and your I-130 immigrant visa petition will be converted from the family-based “2A (i.e., unmarried child under age 21), to an “immediate relative” petition. Once you naturalize, your child will become immediately eligible to apply for permanent residency. Also, your child is allowed to keep the “child” classification no matter how long the application takes to be processed and approved. Under prior law, your child’s application for permanent residency must have been approved before she/he turned 21.
As CSPA freezes your child’s age on the day she/he divorces, the divorce would convert your family-based petition from the 3rd preference category to the “immediate relative” category. Your child will become immediately eligible to apply for permanent residency. Your child is allowed to keep the “child” categorization no matter how long the application takes. (As background: your child’s marriage caused him/her to lose eligibility as a “child” and reclassified him/her as a “son or daughter.” Therefore, your I-130 immigrant visa petition was classified under the family-based 3rd preference for “married sons and daughters” which has a long quota backlog.)
Under prior law, your child’s application for permanent residency must have been approved before she/he turned 21.
I am a permanent resident from the Philippines and filed an immigrant visa petition years ago for my child, who turned 22 last year. I have filed for U.S. citizenship and passed my examination, and my naturalization ceremony is next month. How does this affect my family-based petition?
When you naturalize, your immigrant visa petition is converted from family preference “2B (i.e., “unmarried sons/daughter” of a permanent resident) to family 1st preference (i.e., “unmarried son/daughter” of a US citizen.)
This may be a good thing for most nationalities, but the priority date backlog for Philippines' 1st preference is worse than the F2B preference category.
CSPA also allows your child to file a written statement electing not to convert the petition. Regardless of whether the petition is converted, your child can keep your original priority date. Under prior law, the conversion would have occurred automatically and it was not possible to elect against conversion.
HOW DOES CSPA APPLY TO CHANGE IF A CHILD IS CATEGORIZED IN EMPLOYMENT-BASED CASES?
It depends on the circumstances and timing of the employment-based case. A couple of hypothetical situations will help to clarify:
Under CSPA, the critical dates are:
when an “immigrant visa number becomes available” and for how long the immigrant visa petition was pending.
Currently, an immigrant visa number is available when the I-140 immigrant visa petition is approved in all employment-based categories because there is no priority date backlog for any nationalities. Under CSPA, whether your child can still be classified as your dependent is calculated as follows:
Child’s age on the date when the immigrant visa number becomes available (I-140 approval), minus the number of days the immigrant visa petition was pending under CSPA.
In your case, your child was 21 years and 3 months old when the I-140 immigrant visa petition was approved, but the USCIS took 5 months to process the I-140. Under CSPA, your child’s age is frozen at 21 years and 3 months minus 5 months = 20 years and 10 months. Thus, your child can file for permanent residency with you as your dependent child.
Note: However, your child must apply for permanent residence within one year of availability of the visa number (I-140 approval).
Under prior law, once your child turned age 21, regardless of when the I-140 was filed or approved, she/he “ages out” and would no longer qualify as your dependent child and could not apply for permanent residency with you. After you become a lawful permanent resident, you would have to submit a family preference 2B petition for your child, resulting in delays of several years due to the quota backlog.
I am in non-immigrant status. My employer filed a labor certification for me two years ago, which was approved; my employer then filed an immigrant visa petition for me, which took four months to be approved. I have a child who turned 21 one month before we filed the immigrant visa petition and who is now 21 years and 5 months old. Will my child still be eligible to apply for permanent residency with me as my dependent?
Under CSPA, your child’s age is 21 years and 5 months, minus 4 months = 21 years and one month.
In this situation, your child still “ages out”.
If you file an immigrant visa petition for your child once you become a permanent resident, he/she would be classified under the family-based 2B preference category as an “unmarried son or daughter” of a permanent resident. However, the “priority date” for this application would be your priority date. In this case, the date your employer has filed your labor certificate is your priority date.
HOW DOES THE CSPA AFFECT DEPENDENTS WHOSE PARENTS HAVE FILED ASYLUM APPLICATIONS OR HAVE APPLIED FOR ADMISSION AS REFUGEES?
CSPA freezes the child’s age as on the date when the parent files for asylum or applies for refugee status.
Does the child’s age get freeze, when the NVC fee (under consular processing) has been paid or the DS-260 has been submitted? Or Can a child’s age be freeze once the Welcome letter is issued?
Well the answer to above question implies to all categories except IR (Immediate relatives) as Age out issue is not the concern of a US Citizen child who is under or over 21 as long as the visa petition was filed for them when they were under 21 years old, These immediate relative children never age out. But for the other categories, unfortunately, your child’s age does not get freeze after receiving Welcome Letter or after paying NVC fee or even after submitting DS 260. This is because All these procedures like receiving welcome letter, or Fee bill and submitting DS 260 falls under the chart B Processing time, while actually the priority date becomes current when it is on Chart A and not Chart B, thus, whether the child has aged out or not is calculated according to visa availability shown in the chart A . The CSPA calculation is not applied until that time. Please note that the NVC did its CSPA analysis when the priority date became current using Chart A. For more explanation related to this you can consult our team of immigration attorneys.
How you will be able to know if the child has been denied merely based on CSPA?
A: If the child has been denied solely based on CSPA then it will be informed to you in the form of a written denial decision letter either provided by US Consulate if you are in consular processing and if you have chosen adjustment of status than you will receive a written denial decision letter by the USCIS.
Does it matter that the child reaches the age of 21 before or after the CSPA's implementation date to avail of this revised policy?
A: No, provided the applicant has no final decision on applying for a permanent residence on the basis of an immigrant visa petition before August 6, 2002 which the applicant has claimed to be his child.
If your child is a derivative of a petition filed on your behalf, can the child benefit under CSPA?
A: Yes, as long as the child meets the previously considered CSPA eligibility requirements and applies for permanent residence within one year of the date of preference.
If I was previously denied based solely on age out, can I file a motion to reopen or reconsider my I-485? If so, is there a filing fee?
Under the new policy, USCIS will accept a motion to reopen an approved I-485 application or reconsider its application without any filling fee, if a visa petition was approved before August 6, 2002 and I-485 was filed after August 6, 2002; Applicants will be considered below the age of 21 under applicable CSPA rules; Applicant applied for lawful permanent residence within one year of visa availability; And The applicant received refusal just because he aged out.
Is there any deadline for filing a motion to reconsider I-485(Adjustment of Status which I filed) if it was actually denied only for “getting aged out”? Where do I file a motion?
A: There is no deadline for filing a motion to reconsider your Adjustment of Status if you get the denial letter only based on your age. Motion to reconsider for this has to be apply at their local USCIS field office.
What is the Child Protection Act?
On August 6, 2002, President Bush signed the Child Protection Act (CSPA).
The effect of CSPA on " Age Out"
Prior to the passage of this law, children of United States Citizens and permanent residents were at risk of being "aging out" because of long delays in processing and visa backlog. Children turned 21 and no longer qualified as a minor. CanBecause the child's age was determined at the time of the adjustment of status application or visa application, some children who turned 21, while their petitions were no longer eligible for the green card category. The purpose of the CSPA is to ensure that these delays do not result in some foreign children being denied permanent residency or further delays.
The CSPA changes the process to determine if a child will be "age out", when applying for permanent residence. CSPA affects parents of United States Citizens, legal permanent residents, and children of asylum and refugee applicants. To find out the impact of CSPA for your child contact our immigration attorney and get personalized analysis based on your current situation and status.
CSPA and United States Children of Citizens
If a United States citizen files a permanent residency petition for a child before the child reaches the age of 21, the child will continue to be considered a child under the age of 21 for immigration purposes, regardless of whether your child is 21 years old. The age of the child will be determined on the date on which the application for Form I-130, Petition for Alien Relative filed, while the application for permanent residence is decided.
CSPA and the children of recently naturalized United States citizens
If a legal Permanent Resident files a petition for a child and later naturalizes it, the child's age is determined based on the parent's naturalization date.
CSPA and Divorced Children of Citizens
If a United States citizen files a petition for a married son or daughter and that child is later divorced, the date of the divorce will determine immigration eligibility based on the child's age. If the child is under 21 at the time of the divorce, he or she qualifies as an immediate relative. If the divorce occurs after the age of 21, the child must use immigration first priority category.
CSPA for children of Legal permanent residents
CSPA also affects children who are sponsored by their parents for permanent residency who are legal permanent residents. The age of the child is determined by the date on which an immigrant visa number becomes available, which is approved by USCIS. Is reduced to the number of days under consideration ( Filling date -Approval date = difference)
CSPA and family members with an immigrant
The CSPA also affects the calculation of ages for children who are sponsored, employed, and diversified to join or accompany immigrant parents. The age of these children is determined by the date on which an immigrant visa number becomes available, which is approved by USCIS. The number of days pending is reduced.
How the CSPA affects child I-130 petitions filed by permanent residents
If you are a permanent resident who did not include your minor (under-21) child as a derivative beneficiary in your own green card application (or if your child lost his green card status spending too much time abroad and abandoning the U.S Residency )you can file Form I-130 based on the preferred category F2A .Prior to the CSPA, if your child turns 21 before the visa is available, his or her category is changed to F2B immediately, which clearly meant a long waiting for a green card. With no fault of child , he/she has to go through this process.
However, thanks to the CSPA, your child's I-130 petition will be protected if the applicant” seeks to acquire” the green card within one year of visa becoming available by filing an I-824,(Application for action on an Approved application or Petition) or if your child is in the United States with a legal status, I-485( Adjust status or Application to register Permanent Residence).The Immigrant Visa availability depends on the current priority date, as we have mentioned below, keeping in mind that the “Final Action dates" are shown in the bulletin in this process, not "application filing dates", which allow some applicants to start their application early before a visa becomes actually available.
(It is important to mention that, this law does not apply to old cases where I-130 was approved either on or after August 6, 2002 or the beneficiary child from August 6, 2002). No final decision has been made on whether to adjust the status or immigrant visa application. However, it is almost impossible for anyone to fit this description so far.
By looking at the "priority date" (when USCIS has received your Form I-130) and performing some calculations, you can determine if your son or daughter is still considered a "child" under the CSPA. If I-130 filed for your child is approved and the priority date is before your child's age of 21, unless you apply for permanent residence within one year, your child Is protected by the CSPA.
But what if your child is celebrating 21st birthday and your Form I-130 has not been approved or your priority date is not current yet? Will CSPA protect your child? Unfortunately, in such cases, you must have to wait and watch. You should keep a Check at the Visa Bulletin every month to find if the priority date is current.
How long do you wait for your priority date to become current?
If you want to know when your priority date getcurrent, Please contact F4 India Law firm,we will help you.
Suppose your child was born on Oct 30 ,1989.His priority date is Jan 15, 2010, and approval date for his petition is July 01.2012. The visa for your child was made available in the July 01,2015 Visa Bulletin. You must first find out how old your child was on the first day of the month of the Visa Bulletin (in this case, July 1, 2012). You can do this very easily with a date-to-date calculator: this is 8,280 days (or 22 years, 8 months, and 2 day).
Next, reduce the number of days of your I-130 from your child's age. To find the day in question, reuse the date-to-date calculator to determine the number of days between the priority date and the visa bulletin date. In our example, you waited 898 days (two years, five months and 17 days) for the visa to become available. Therefore, your child's CSPA is approximately 20 years and three months old, meaning he or she is protected by CSPA and can file Form I-824 (outside the USA) or Form I-485 (legally present in theUS) for a green card.
How CSPA Affects Child Derivative Beneficiaries of Family Based Visa Petitions ( F4 -Category)
The CSPA (Child Status Protection Act) can also protect child derivative beneficiaries of other family-based petitions, ensuring that they can still be included in their parents' applications even if they have "aged out" in the past.
For example, if you are a United States citizen, you can apply using Form I-130 for a green card for your unmarried or married sons and daughters and for your siblings. These petitions may also include derivative beneficiaries (i.e., your grandchildren, nephews, or nieces). The same guidelines and calculations apply to you from the previous section, except that you will check the priority categories "F1, F3, and" F4 "in the Visa Bulletin.
For more information kindly contact our office.
The CSPA allows certain permanent residents to "Opt out"
CSPA (Child Status Protection Act) those LPR. It also allows those who have filed Form I-130 on behalf of their unmarried son or daughter to "Opt Out", means to transfer their petition to the preferred category F1 if that visa is not available before getting naturalize. You may wonder why you would ever want to "Opt Out" of one of the benefits offered to United States Citizens. But surprisingly, the F1 category is always different from the F2B category for LPR's unmarried sons and daughtersas , it the F1 category has been oversubscribed than the F2B category for the unmarried sons and daughters of LPRs. The CSPA (Child Status Protection Act) essentially allows an LPR with a pending I-130 to later select the category in which the visa is readily available. If this applies to you, the beneficiary child will need to notify USCIS in writing if they decide to remain in the F2B category.
How to freeze a child's age through CSPA (Child Status Protection Act)
Unmarried children under the age of 21 can immigrate with their parents as "derivative beneficiaries" under certain immigrant visa categories. However, problems arise when one of the children of the petitioner is disqualified before the issuance of the immigrant visa of his parents. In these circumstances, the petitioner has filed his application when the child is under 21 years of age, but the quota or delay in the process prevents the child from migrating before he loses his eligibility.
In 2002, Congress passed the Child Status Protection Act (CSPA) to protect derivative beneficiary children from losing their eligibility due to slow processing time at USCIS. CSPA (Child Status Protection Act) does not prevent children from getting age out, due to quota delays. CSPA allows a child to recoup the amount of time the immigrant visa (“IV”) petition (I-130, I-140, I-360 or I-526) was pending adjudication at USCIS.
How to Determine or Setting up a CSPA 21st Birthday
The first step in determining whether a derivative beneficiary child remains eligible despite a biological age of over 21 years of age is to calculate the child's "CSPA 21st birthday". The CSPA (Child Status Protection Act) 21st birthday is the child's biological 21st birthday as well as the number of days between receipt and approval of the IV petition.
21st birthday + number of days IV petition was under consideration = CSPA 21st birthday
The CSPA (Child Status Protection Act) does not protect a child from the age out problems that result from the visa backlog. That way, once the IV petition is approved, the clock will start ticking again at the age of the child until the moment of visa availability. As a result, the CSPA-protected child may still be age out, if the quota delay is too long. For a child at that time CSPA (Child Status Protection Act) . It is possible to be safe when the IV petition is approved and then the age expires while waiting for the visa to be available.
If the child's CSPA 21st birthday passes before the visa becomes available
For most immigrants, the waiting period is several years after the IV petition is approved before the visa number becomes available. These waiting periods are the result of quotas on how many visas are issued in each category. If no visa number is available, the child's age continues to increase from the date of IV approval.
On the date of IV approval, the CSPA (Child Status Protection Act) must restore the child to the age the child was on the date of filing the IV. However, the CSPA does not "freeze" or "lock" the child's restored age unless the child has taken the next step in the immigrant visa process (filing DS-260 or I-485) before reaching their CSPA (Child Status Protection Act) 21st birthday. Many children are prevented from taking this next step by delaying the quota.
How to Freeze the child’s age in the F4 -Category Petition?
A child's CSPA adjusted age can be frozen or locked in only on the date of visa availability. Visa availability occurs on the first day of the month when the filing date of the specific petitioner is prior the date listed in the Visa Bulletin. Child is aged out or not, can be determined by the date of the visa availability.
As per current law, filing Adjustment of status (I-485) if applicants are already in the United States, filing DS-260, if applicants are living abroad, is effective in freezing child’s age If the child has not crossed their 21st birthday on the date of visa availability. "initial files" of Adjustment of Status or DS-260 prior to visa availability are ineffective unless the child is subject to their CSPA-adjusted age on the visa availability date.
How we explain Sought to Acquire - One-year deadline
When a child's age (biological or CSPA-adjusted) is less than 21 on the date of visa availability, it is important that the child take the next step by filing AOS or DS-260 within one year of visa availability. This one-year deadline, called the "Sought to acquire", is rarely an issue in the retrogressed (quota delay) categories. However, for current categories, families must be aware of the one-year deadline and not wait too long before a child can obtain immigrant visa eligibility with a DS-260 or AOS filing.
Children who are out of CSPA protection
Because the CSPA does not "freeze" a child's age indefinitely, children may be excluded before immigrating. In these circumstances - and in situations where parents are told in a consulate interview that the child may be not eligible to immigrate - The next step is for parents to file a Form I-130. I-130 allows Citizens or permanent residents to apply to the government for immigration status on behalf of a family member. Older children can be reunited with family through family-based I-130 petitions.
My brother who is U.S Citizen and he has filed a (F4 -Category)petition for me in 2006 Dec, USCIS has approved my petition but i have lost that approval notice. My Daughter is 22 years old and some people are saying after 21 no child can go with parents in F4 Visa Category.Visa bulletin is showing 2005 Dec as final action date.Please tell me what to do now ?
First you have to find out the approval notice, it is really very important for you to find out the details .If you are not able to find then you have to contact USCIS by email or phone . If Your daughter’s age is more than 21 after CSPA calculation at the time of interview then she won’t get the visa with you. You are requested to contact our office.
I am from Moga, Punjab ,India My Grand Father has filed a Petition (F3-Category) for my mother in 2011 and USCIS has approved in Aug 12, 2013 .We are three brother and all are over 21 age , My elder brother got married two years back and i am worried now about visa.I have requested my Grandfather to hire an attorney but he is asking me to wait for welcome letter.Do we have to wait for welcome letter ?
Your elder brother won’t get visa in this petition, because derivative should be unmarried and under 21 after the CSPA calculation at the time of visa interview. You should hire an attorney immediately, do not wait for welcome letter. Social media and google can’t provide you legal information. You can calculate your age at our website by clicking CSPA age calculator, actually its very simple. you need to know your priority date and approval date when you calculate your age.
- Approval date - priority date = X time.
- Then calculate your age when your visa priority date will become current at the time of interview , suppose today you are 23 years old and your visa interview date will get current in next 8 months,You add 8 months in your current age so your age will be like 23 years and 8 months at the time of interview now
- Reduce the X time from 23 years 8 months.
Note: Your age should be less than 21 years, if your age is more than 21 years then you may not be eligible for the visa under f4 visa category. Visa officer will calculate your CSPA at the time of your interview.