Child Status Protection Act

On August 6, 2002, the Child Status Protection Act (CSPA) was signed into law by President Bush. This law amends the Immigration and Nationality Act (INA) by changing how an alien is determined to be a child for purposes of immigrant classification. The Act permits an alien applicant to retain classification as a “child” even if the alien reached the age of 21, for the purpose of the issuance of visas by the Department of State and the adjustment of status of aliens by the Citizenship and Immigration Services.

The CSPA helps many children of US citizens immigrate faster than they would have under the prior law. It provides a more limited form of relief for the unmarried children of lawful permanent residents (LPR), as well as derivatives in the family and employment based preference categories. The CSPA also helps the children of asylees and refugees, and children who seek relief under the Violence Against Women Act (WAVA), retain derivative status upon turning 21.

Immediate Relatives (children of US citizens):

Section 2 of the CSPA addresses the rules for determining whether certain aliens are immediate relatives. This Section was enacted to prevent a child from “aging-out” due to CIS processing delays. CIS will use the date of the filing of I-130 to determine the age of a beneficiary adjusting as the child of a United States citizen. If the beneficiary was under 21 on the date the I-130 was filed, or converted to immediate relative from the 2A or 3^rd preference before turning 21, then the beneficiary will never age out of immediate relative status. This section also amends the Act to allow married children of USCs to use their age on the date of the termination of their marriage when determining under which immigrant category to adjust.

Unmarried children of Naturalized Citizens:

Section 6 of the CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also provides the unmarried son or daughter the ability to request that such transfer to occur.

Preference Categories:

Direct Beneficiaries: Section 3 of the CSPA addresses whether certain aliens will be able to adjust as a “child” of a LPR even if they are no longer under the age of 21. The beneficiary’s age is to be calculated for CSPA purpose by first determining the age of the alien on the date that a visa number becomes available. The beneficiary’s age will be locked in on the date the priority date of the Form I-130 becomes current, less the number of the days that he petition is pending, provided that the beneficiary seeks to acquire the status of an LPR within one year of such visa availability.

Derivative Beneficiaries – Family and Employment-Based: Section 3 of the CSPA also applies to derivative beneficiaries in both family-based and employment-based preference categories. Just like the case of Form I-130, an adjustment or immigrant visa case based on Form I-140, the derivative beneficiary’s age is calculated by first determining the alien’s age on the date the priority date first becomes current for that specific preference category. From that age, subtract the number of days that the petition was pending; provided that the alien must, within one year of the visa availability date, apply for adjustment of status, an immigrant visa, or be the beneficiary of an I-824 in order for the CSPA coverage to continue.

Unmarried children of Asylees and Refugees:

Asylee: CSPA amends the INA with respect to the derivatives of asylum applications, children who turn 21 of age after an asylum application was filed but prior to adjudication are still considered to be eligible for derivative asylum status. The relevant date to consider in determining whether the dependent who has turned 21 still qualifies as a “child” for purposes of eligibility for derivative status is the date the Principal Applicant filed the Form I-589. The child must be under 21 on the date that his or her parent, the Principal Applicant filed the Form I-589. There is no requirement that he child have been included as a dependent on the principal applicant’s asylum application at the time of filing, only that the child be included prior to the adjudication. The Principal Applicant may add to his or her asylum application an unmarried son or daughter who is 21 years of age, but who was 20 at the time the Principal Applicant filed the asylum.

Refugee: The age of derivative on the date the Principal Applicant files the Form I-590, which is the date the applicant is interviewed by the USCIS officer, determines that beneficiary’s eligibility for classification as a derivative refugee. Therefore, if a derivative child on an Affidavit of relationship (AOR) is under 21 at the time the Principal Applicant is interviewed by USCIS, he or she will be classified as an RE-3 derivative and may be approved based on the approval of the Principal Applicant’s application. If a derivative child turned 21 since the filing of the AOR and prior the USIS interview, the child can no longer derive refugee classification as an RE-3 through the Principal Applicant. This individual should still be granted access to the Priority 3 program; however, he or she must establish eligibility as a Principal Applicant on his or her own case. The aged-out child would not need to meet case composition guidelines, as he or she would not be considered to be an add-on. If approved for refugee classification, he or she would be designated as an RE-1.

Children who seek relief under VAWA

Immediate Relative: Section 2 of the CSPA addresses immediate relative children of US citizens. According to Section 2 of the CSPA, any child of a US citizen abuser who flies a Form I-360 prior his/her 21^st birthday will remain child for immigration purposes throughout the adjudication of the Form I-360and Form I-485, provided that the child remains unmarried. This also pertains to children who are listed as derivatives on their parent’s Form I-360. Therefore, if the spouse of a US citizen abuser properly files a Form I-360 prior the children turn 21, and those children are included in the petition, then those children can benefit from the age-out provisions of Section 2 of the CSPA, provided that the children remain unmarried.

Preference Categories: Section 3 of the CSPA addresses if certain aliens will be able to adjust as a “child” of a lawful permanent resident even if they are longer under the age of 21. According to Section 3 of the CSPA, the beneficiary’s “age” is to be calculated for CSPA purposes by first determining the age of the alien on the date that visa number becomes available for that preference category. If upon the approval of the Form I-360, a visa number is already available according to the Department of State Visa Bulletin, the date that a visa number becomes available is the I-360 approval date. From that age, subtract the number of days that he Form I-360 was pending, provided the beneficiary files a Form I-485 based on the subject petition, with one year of such visa availability. The “period that a petition is pending” is the date that it is properly filed (receipt date) until the date an approval is issued on the petition.