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The Child Status Protection Act was a federal law enacted in 2002 to protect the rights of minors undergoing immigrant visa processes. It protects children from being denied their applications because of age-out, which occurs when a child turns 21 before their application is approved.
Before the CSPA was passed, a child of a US citizen with lawful permanent resident status could only become a permanent resident if they were under 21 years old and unmarried. They were no longer eligible to receive a visa if they turned 21 while their application was still being processed, even if there was a delay in processing their application.
The CSPA changed this by allowing these children to “freeze” their age while their application is being processed. This means that their age is not counted as the application is pending, so the child can still receive their visa even if they turn 21 while the application is being processed. However, the CSPA doesn’t change the condition that the child must remain unmarried to qualify.
The Child Status Protection Act applies to various immigration categories. They include:
Family and employment preference
Refugees and asylees
Nonimmigrant K visas
In immigration, there are two types of ages: biological age and immigration age. Biological age is the person’s age based on their date of birth. Immigration age is the applicant’s age based on the date when an immigrant visa becomes available.
In general, the CSPA prescribes a calculation called the “CSPA age” formula, which is expressed as follows:
CSPA age = (Child’s age when the visa becomes available) – (Time the petition was pending)
However, each category of immigration has its own set of rules and calculations. Here are some examples of CSPA age calculation for different categories:
These are children of U.S. citizens who want a green card. The CSPA formula is:
Child’s age – Pending Time = Child’s CSPA Age
Pending time refers to the period between filing a petition and its approval. For instance, if you are 21 years and 4 months old when you become eligible for an immigrant visa. If it took 6 months for your petition to get approved, your CSPA age would be:
21 years and 4 months – 6 months = 20 years and 10 months. This makes you eligible as a child.
These are children of lawful permanent residents (LPRs) who are seeking a green card in one of the preference categories.
The CSPA formula used in this category is:
Child’s age – Pending Time – Retention Time = child’s CSPA Age.
Retention time refers to the period when the visa is unavailable after the petition has been approved. Let’s say you can get an immigrant visa on your 25th birthday. However, your petition takes 5 years to get approved, and then it takes an additional 2 years to get a visa number.
In this case, your CSPA age would be:
25 years – 5 years – 2 years = 18 years. This means you are eligible as a child.
They are children of refugees or asylees who are seeking a Green Card based on their parent’s status. In this scenario, the CSPA formula works as follows:
Biological Age – Asylum/Refugee Status Time = child’s CSPA Age.
Asylum/refugee status time begins when the parent obtains refugee status and continues until they secure an immigrant visa for the child. So, if you are 23 years old when you become eligible for an immigrant visa and if your parent obtained asylum status 3 years ago, your CSPA age would be:
23 years – 3 years = 20 years. This means you are eligible as a child.
The CSPA does not cover K nonimmigrants. However, there are certain limited circumstances under which K-2 and K-4 nonimmigrants may still benefit from the CSPA. To be eligible for the CSPA under a K-2 or K-4 status, you must be the beneficiary of Form I-130, Petition for Alien Relative.
For K-2 visa holders, their age “freezes” on the date their stepparent files Form I-130. They may benefit from the CSPA as long as their stepparent files Form I-130 before their 21st birthday.
To qualify as a stepchild on a K4 visa, the marriage between your U.S. citizen stepparent and your K-3 nonimmigrant parent must take place before your 18th birthday. Like the K-2, your age “freezes” on the date the Form I-130 is filed, so you can benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday.
Let’s say you are 21 years and 2 months old when U.S. Citizenship and Immigration Services (USCIS) approves your parent’s petition. If USCIS received the petition 8 months ago, then your CSPA age would be:
21 years and 2 months – 8 months = 20 years and 6 months. This makes you eligible as a child.
It does not matter where you live or where you apply for a green card. The CSPA rules and calculations are the same for everyone who is eligible.
These CSPA provisions are laid out in the Immigration and Nationality Act (INA) and the Code of Federal Regulations (CFR), which serve as the legal foundation for the implementation of the Act.
Regardless of what state or city you live in, to benefit from the CSPA, applicants are required to utilize the official forms and follow the instructions provided by the USCIS. Additionally, it’s advisable to stay informed and keep abreast of updates from the Department of State (DOS) to ensure accurate and up-to-date information throughout the application process.
By adhering to the guidelines set forth in the CSPA, eligible applicants can navigate the immigration process more confidently, knowing that the rules are consistent and designed to protect their eligibility for immigration benefits, regardless of their location or circumstances.
CSPA applications can be complex. You may need to deal with several petitions or applications. That’s where an attorney from Andrew T. Thomas, Attorneys at Law, comes in. We can help you untangle the legal complexities of filing a petition in the following ways:
Provide legal advice regarding your CSPA eligibility and options
Prepare and file your applications and petitions for CSPA benefits and Suits Affecting Parent-Child Relationship (SAPCR)
Communicate with USCIS or DOS on your behalf
Represent you in hearings or interviews when necessary
Appeal or litigate unfavorable decisions whenever necessary
Contact Andrew T. Thomas, Attorneys at Law, for all of your immigration needs. Our team of child custody lawyers can also assist you with family law matters, including child support cases. Get in touch with us today to receive a free case evaluation and find out how we can assist you.