Many individuals, who are eligible for permanent residency, or green card status through a family petition, employer petition, or diversity lottery are concerned whether their minor children will qualify for status with them when the time comes.
Unfortunately, with long wait times across various immigrant categories, there is a risk that a minor child could “age out” or reach the age of majority and therefore no longer be considered a minor for the purpose of immigrating with his or her family. In August 2002, Congress sought to remedy this issue through a law called the Child Status Protection Act (CSPA), which can preserve a minor child’s age in certain circumstances.
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For the purpose of receiving an immigration benefit, an individual is considered a “child” if they are unmarried and under the age of 21. Wait times across family-based and employment-based categories can take vary, sometimes taking years.
Under CSPA, the law “freezes” a child’s age from the time the family (Form I-130) or employment-based petition (Form I-140) is filed until it is approved. This allows the child derivative to subtract that amount of time from the child’s age on the date that the priority date becomes current. The priority date can be tracked through the visa bulletin that is issued monthly by the Department of State.
Related: What is the Visa Bulletin?
If the child then seeks to acquire residency status within one year of the date that the priority date is current, he or she will still qualify for residency status even if he or she is over the age of 21. Keep in mind that should the child get married, he or she is no longer considered a minor, regardless of the CSPA age or actual age.
There are two relevant calculations that must be made in order to determine one’s age under CSPA. (1) The petition pending time, and (2) the CSPA age.
The “petition pending time” is the length of time from the filing of the I-130, I-140 or other petition (VAWA I-360, for example) until it is approved. Oftentimes in various family-based immigration categories, it is not uncommon for the petition to be pending for 5+ years, which will only benefit any derivative minor children when determining CSPA.
Then, the “CSPA age” is the child’s age at the time the visa becomes available minus the petition pending time. To illustrate how to make the calculation:
Jenny is a US citizen who is petitioning her brother Joseph. Joseph has three children, Joe Jr, who was 16, Josephine, who was 14, and Joey, who was 8 when the I-130 petition was filed on April 1, 2010. The I-130 petition for Joseph and his children was approved on October 1, 2015.
The visa becomes available for Joseph and his children on October 1, 2020. Can Joe Jr, Josephine, and Joey apply for residency along with their father Joseph?
To consider this, each child needs a separate calculation to determine their CSPA age. However, they will all have same petition pending time, since we are only referring to one petition.
The petition pending time is October 1, 2015 – April 1, 2010, or 5 years and 6 months.
You then need to determine each child’s age at the time the visa became available on October 1, 2020. Joe Jr. is 26, Josephine is 24, and Joey is 18.
To determine their CSPA age, you subtract their current age from the petition pending time.
Joe Jr.- 26 – 5 years and 6 months = 21 and 6 months old
Josephine- 24 – 5 years and 6 months = 19 and 6 months old
Joey does not need to calculate a CSPA age because he is only 18 years old and therefore still a minor for immigration purposes.
In the above scenario, Joe Jr. has aged out because his CSPA-calculated age is 21 years and 6 months old, which is above 21. Josephine will still qualify with her dad Joseph and younger brother Joey because although she is 24 years old, her CSPA age is 19 years and 6 months old. So as long as Josephine seeks to acquire residency status within one year of October 1, 2020, she will be eligible to immigrate with her family.
In order to benefit from CSPA, not only must one’s CSPA age be under the age of 21 at the time the visa becomes available, but an individual applicant must also “seek to acquire” residency status within one year of the visa becoming available.
There are three ways that someone can seek to acquire residency status within one year of the visa becoming available:
The Child Status Protection Act was a necessary fix by Congress to help those subject to long wait times for residency status. Previously, this situation ended up with many derivative children being unable to obtain any immigration relief or benefit through no fault of their own.
If you think you or your dependent children could benefit from CSPA, contact our office today to set up a consultation with an experienced immigration attorney.