Changes to the Child Status Protection Act (CSPA)
The H-1B visa program isn’t the only immigrant and nonimmigrant category that permits minors to enter the US. Because the concern of “aging out” is so widespread, Congress created the Child Status Protection Act (CSPA) to regulate how this issue is handled.
The latest updates, released on February 14, 2023, changed previous policy guidelines. Children aging out must still apply for an adjustment of status, but now, USCIS uses an age calculation to determine when a visa becomes available for these new adults.
Anyone who submitted an application before February 14, 2023, and had it denied can file a motion for an adjustment of status if they believe that their CSPA age calculation places them under 21. Use a Notice of Appeal of Motion (Form I-290B) to submit your request.
The Age Calculations
In 2002, the Child Status Protection Act took effect as an attempt to protect qualified children from aging out of the system due to USCIS processing backlogs. Per the Immigration and Nationality Act (INA) definition, a child is someone who is unmarried and under the age of 21.
There are situations in which an individual applies for lawful permanent resident (LPR) status while they are defined as a child, but before they are approved for this Green Card, they turn 21. Before the new policy changes, this would mean that they’d have to file a new petition or application and begin the wait for their Green Card all over again, at best, or lose eligibility for permanent residency altogether.
The new guidelines under the CSPA keep the definition of a child but integrate a method to calculate the individual’s age to determine if they meet the definition for immigration purposes through their CSPA age. This gives some people the ability to remain classified as a child even after they turn 21. But once the person is married, they are no longer a child, regardless of their age.
Eligibility for CSPA
Will your child’s status make them eligible for an extended period under the CSPA? Currently, this protection only applies to those who meet one or more of these categories:
● Immediate relatives of a US citizen or Green Card holder or any of the subsequent categories here,
● Family-sponsored preference principal applicants and their derivatives,
● Employment-based preference derivatives,
● Self-petitioners and their derivatives under the Violence Against Women Act (VAWA),
● Derivative refugees and asylees,
● Diversity Immigrant Visa applicants.
You may file for a Green Card or a CSPA reconsideration if you qualify under any of these categories. Immediate relatives of VAWAs or US citizens have their age frozen on the date their Form I-130 or I-360 is filed, meaning those under the age of 21 when their petition was filed will not age out, provided they remain unmarried.
Those under the Family and Employment Preference and Diversity Visa immigrants use a calculation to determine their CSPA age. This involves subtracting how many days their petition was pending from their age on the date the visa becomes available. As an example, if the child is 21 and 2 months, and their petition was pending for five months, their CSPA age is 21 and 2 months minus five months, or 20 and 9 months, making them eligible for the visa.
Should you wish to use the benefits of CPSA under a family or employment preference petition or as a DV applicant, you are required to begin the request to become a lawful permanent resident within one year of the visa’s availability to you from your adjustment of status. If you can’t meet this requirement, you’ll need to establish the cause was due to extraordinary circumstances to keep your visa.
Other Circumstances
In some cases, a lawful permanent resident (LPR) wishes to file a Petition for Alien Relative (Form I-130) for unmarried children. This puts the dependents as a family second preference case. But once the petitioner becomes a US citizen (naturalizes) and the petition is still outstanding, it is then moved to the category of immediate relative or family first preference.
In the event that you were an LPR when you filed Form I-130 for your child under 21, and then you become a US citizen while the child was still under 21, their age freezes on the date of your citizenship. This places your child as an immediate relative who will never age out of the system. However, your child can choose to opt out of the conversion if the second-preference classification (F2B) has a shorter wait time than the first preference.
What’s Next?
These changes are in alignment with USCIS’s attempt to alleviate the negative consequences of the visa backlogs that have been part of the system for years. Although they’re a positive step, it can still be confusing to understand what visa benefits you and your family qualify for. When you’re a foreign worker with questions, Visa2US has the answers you need. Our legal experts are available 24/7 to clear up your confusion and help you learn which steps to take next on your journey to live and work in the US.
