Did you know that if your child ages out of the legal age requirement to be considered a child on an immigration petition, you might still be able to retain their child classification so that they are still a “child” for immigration purposes? Indeed, you can! For example, if you are concerned about your child turning 21 years of age before a family petition is approved or a visa becomes available, you may still proceed with the family petition through the Child Status Protection Act. Read on to find out more about how this law can make it possible for your child, who is at risk of turning 21, to still get a visa or obtain their Green Card!
What is the Child Status Protection Act – CSPA?
The Child Status Protection Act (CSPA) was passed on August 6, 2002, to help children from aging out of the lawful permanent resident (LPR) child application process due to backlogs in USCIS processing of applications. It allows qualifying children to not lose their classification as children once they turn 21 and ensures that aging out of the system will not prevent them from obtaining their Green Card.
Why was the CSPA passed?
Under the Immigration and Nationality Act (INA), a child is defined as a person who is unmarried and under 21 years of age. If a child turns 21 before their petition is approved or a visa becomes available, then they are no longer considered to be a child for their immigration application. This means that they will have to file a new petition or application, wait for an unnecessarily long period of time, and/or may lose their eligibility to obtain a Green Card. The CSPA was passed to avoid this, and it created a formula for age calculation to determine if the child can still legally be defined as a child. Therefore, even if the child turns 21, based on the CSPA calculations, their “age” would be considered much younger.
The formula calculations consider the age of the child at the time the petition was filed, the dates the petitions are filed and approved, the child’s current age, and visa availability. There are different calculations depending on the immigration petition. Thanks to the CSPA, many people have retained their child classification after turning 21, and successfully obtained their Green Card. However, even if the child is under 21 based on Child Status Protection Act calculations, the child must still be unmarried to meet the definition of a “child”!
Who does the CSPA apply to?
The CSPA applies differently to each child based on the immigrant category. The CSPA can only be applied to the following applicants:
- Immediate relatives;
- Family-sponsored preference principals and derivative applicants;
- VAWA self-petitioners and their derivative applicants;
- Employment-based preference derivative applicants;
- Diversity Immigrant Visa derivative applicants;
- Derivative refugees; and
- Derivative asylees.
How can I apply for CSPA consideration for my child?
You can apply for CSPA consideration by having your immigration attorney do the Child Status Protection Act calculations and demonstrate that the child in question is still under 21 according to the calculations. Although the child may be older, the CSPA freezes the ages so that you are able to continue the petition. The CSPA can benefit your child whether they are applying for adjustment of status in the U.S. or they will need to apply for an immigrant visa and undergo consular processing outside the U.S.
It can be deeply stressful to worry about your child aging out of a petition, but the CSPA can protect you from unnecessary delays and hurdles to reunite your family. If you think that your child might benefit from CPSA consideration, contact us for an assessment of eligibility and help navigating the application process.