Introduction
Section 101(b)(1) of the Immigration and Nationality Act (INA) defines a child as a person who is unmarried and under 21 years old. As a general matter, children age out at age 21 and are no longer eligible as derivative beneficiaries. If someone applies for lawful permanent resident status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card.
As Congress recognized that many children were aging out due to backlogs and long processing times for some visa petitions, it enacted the Child Status Protection Act (CSPA). CSPA provides relief to certain dependent children who otherwise would “age out” of eligibility to obtain immigration benefits upon reaching the age of 21 years before they can become lawful permanent residents with their parents by providing a method to calculate the child’s age that considers when an immigrant visa number “becomes available”. Signed into law on August 6, 2002, the CSPA has been a lifeline for many immigrant families, allowing them to reunite with their loved ones in the United States. The Department of State’s Visa Bulletin is used to determine when a visa number becomes available. The Visa Bulletin has two charts – the Dates for Filing chart and the Final Action Date chart.
Understanding the CSPA
The Child Status Protection Act was created to address the predicament faced by immigrant children who turn 21 years old before their immigration applications are processed. Under immigration laws before the CSPA, once a child reached the age of 21, they were no longer considered "children" for immigration purposes. This often resulted in devastating family separations and the denial of immigration benefits for deserving children. For noncitizens seeking lawful permanent resident status in a preference category, the CSPA provides a method to calculate a noncitizen’s age based on the date an immigrant visa becomes available, but only if the noncitizen seeks to acquire lawful permanent resident status within 1 year of such immigrant visa availability.
Key Provisions of the CSPA
Age Freeze: The CSPA introduced the concept of "age freezing" to protect the eligibility of children seeking to immigrate to the United States. The applicant’s CSPA age is determined based on how long the applicant’s underlying petition was pending and the applicant’s age when a visa became available to the applicant or the petition is approved, whichever is later. The CSPA age associated with the petition does not change after the filing of the adjustment of status application and is frozen through the final adjudication, regardless of when a visa is authorized for issuance based on the Final Action Dates chart. This ensures that children who would have aged out due to lengthy processing times still retain their eligibility.
Formula for Age-Out Protection: The CSPA provides a specific formula for calculating the child's "adjusted age" for immigration purposes. Under the CSPA, a child’s age is calculated by looking at the actual age on the date that the priority date for the green card case became current, or the date on which the underlying immigrant petition (on form I-130, I-140, I-360, I-536, or diversity visa) was approved, whichever is later, and subtracting the number of days that the petition was pending, to obtain the child’s CSPA age. The calculated age is the child’s “CSPA age.”
Impact and Significance
The Child Status Protection Act has had a profound impact on the lives of countless immigrant families in the United States. Its significance lies in the following aspects:
Family Reunification: The CSPA has prevented the unnecessary separation of families by allowing children to retain their eligibility for immigration benefits despite reaching the age of 21. This ensures that families can stay together and build their lives in the United States.
Fairness and Equity: The CSPA promotes fairness and equity in the immigration system by recognizing that lengthy processing times should not penalize children. It acknowledges the inherent delays in the immigration process and addresses them effectively.
Legal Protections: By providing clear legal protections for immigrant children, the CSPA ensures that their rights are upheld and that they are not disadvantaged due to factors beyond their control.
Diverse Applications: The CSPA is applicable to various immigration categories, including family-sponsored, employment-based, and diversity visas. This broad applicability extends its reach to a wide range of immigrant populations.
Recent Policy Changes
On February 14, 2023, USCIS issued policy guidance to update when an immigrant visa “becomes available” for the purpose of calculating an applicant’s CSPA age. USCIS now considers a visa available to calculate CSPA age for these applicants at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. If noncitizens apply to adjust their status under the new policy issued on Feb. 14, they may not be able to meet the 1-year sought to acquire requirement. However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances. Also, noncitizens may file a motion to reopen their previously denied adjustment of status application based on prior policy guidance by using Form I-290B, Notice of Appeal or Motion.
On August 24, 2023, USCIS further updated policy guidance to clarify that USCIS considers the February 14, 2023, policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement provided that the delay in filing the adjustment of status application is reasonable under the circumstances. The reasonableness of the delay is determined from August 24, 2023, the date USCIS is publishing the policy considering the February 14, 2023, policy change to be an extraordinary circumstance.
Conclusion
The Child Status Protection Act is a vital piece of legislation that has had a profound impact on the lives of immigrant children and their families in the United States. By freezing the age of eligible children and providing a formula for age-out protection, the CSPA ensures that deserving individuals are not penalized due to the lengthy immigration process. While it has its complexities and limitations, its overarching goal of family reunification and fairness in immigration has made it a critical safeguard for immigrant children, embodying the principles of justice and compassion in the U.S. immigration system. If you would like to help develop a plan of action on how to deal with this, I suggest you schedule a consulltation.
Hari Subhash, Esq.
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