How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries

Turning 21 no longer destroys children's eligibility as it used to -- learn the details here.

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The Child Status Protection Act (CSPA) of 2002 was a great step forward in addressing the lengthy wait times that often blocked good faith attempts by U.S. citizens and permanent residents to apply for green cards for unmarried children under age 21. Prior to the CSPA, many children with pending immigrant visa petitions “aged out” -- that is, lost their eligibility -- if a visa did not become available before their 21st birthdays. If a child “aged out,” it resulted in an even longer wait – or in some instances, the child was rendered ineligible to be a derivative beneficiary on their parent’s petition. Now, however, the child’s age on the date that U.S. Citizenship and Immigration Services (USCIS) received the visa application compared to his or her age on the date a visa became available is what matters.

This article will address whether you can take advantage of the CSPA if you are a U.S. permanent resident who filed a family-based visa petition for your child, or if you are a U.S. citizen with a pending petition for a family member, and that person's own child was included as a derivative beneficiary.

If you are a U.S. citizen (or a permanent resident who hopes to naturalize soon) and you are looking to bring your foreign-born child to the U.S., the article “How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens” has information that is more applicable to your situation.

How Permanent Residents Can Sponsor Their Children for Green Cards

First of all, let’s explain some immigration jargon. Lawful permanent residents (LPRs) can file what is known as a “family-based” immigration petition for their children and for their unmarried sons and daughters by filing Form I-130, Petition for Alien Relative. (This application process is described more fully at “Filling Out and Submitting Form I-130 for a Child.”)

U.S. immigration law defines a “child” as an unmarried person under age 21. USCIS and the U.S. Department of State (DOS) call the non-citizen children of U.S. citizens and permanent residents who are older than 21 “sons and daughters.” While this may sound like the same thing, the two categories are treated very differently by U.S. immigration law.

If you visit the DOS Visa Bulletin, you can see that the children of LPRs are in visa preference category “F2A” and the sons and daughters of LPRs are in category “F2B.” These categories are important for this discussion of the CSPA because you can see the huge differences in wait times – you definitely don’t want your child to “age out” and be bumped down to the F2B preference category. (Take a look at the dates shown in the Visa Bulletin – they indicate that people whose visa petitions were first filed on that day are only now eligible to continue the application process and receive their green cards.)

How the CSPA Impacts Child Visa Petitions Filed by Permanent Residents

If you are a permanent resident who didn’t include your minor child as a derivative beneficiary in your own green card application (or if your child lost the green card by spending too much time abroad and abandoning U.S. residency), you can file Form I-130 based on preference category F2A. Prior to the CSPA, if your child turned 21 before a visa became available, he or she would immediately have been moved down to category F2B. As you can see, this meant a much longer wait for a green card, and through no fault of the child’s.

But thanks to the CSPA, your child’s I-130 petition will be protected if:

  1. it was either pending or approved on or after August 6, 2002
  2. the beneficiary child didn’t already receive a final decision on the adjustment of status or immigrant visa application before August 6, 2002, and
  3. the applicant “seeks to acquire” the green card within one year of a visa becoming available by filing I-824, Application for Action on an Approved Application or Petition or if your child is legally in the U.S., Form I-485, Application to Register Permanent Residence or Adjust Status.

Now, by looking at the “priority date” (the date your Form I-130 was received by USCIS) and by making a few calculations, you can determine whether or not your son or daughter may still be considered a “child” under the CSPA. If the Form I-130 filed for your child is approved and the priority date becomes current before your child turns 21, as long as you apply for permanent residence within a year, your child is protected by the CSPA.

But what if your child celebrates his or her 21st birthday and your Form I-130 has not been approved or your priority date is still not current? Will the CSPA protect your child? Unfortunately, in this case you must “wait and see.” Keep checking the Visa Bulletin each month to see whether the priority date is current. (Nolo's article, "How Long Is the Wait for Your Priority Date to Become Current?" can help with this task.) If so, it’s time to do some math to see if the CSPA will help you.

Let’s say your child was born on November 30, 1989 and has a priority date of February 15, 2010. A visa became available for your child in the July 2012 Visa Bulletin. You first should determine what your child’s age was in days on the first day of the month of the Visa Bulletin (in this case, July 1, 2012). You can do this very easily with a date-to-date calculator: It’s 8,249 days (or 22 years, 7 months, and 1 day).

Next, subtract the number of days your I-130 was pending from your child’s age. To find the days pending, use the date-to-date calculator again to find out the number of days between the priority date and the Visa Bulletin date. In our example, you waited 867 days (2 years, 4 months, and 16 days) for a visa to become available. So your child’s CSPA age is roughly 20 years and 3 months, meaning he or she is protected by the CSPA and may now file Form I-824 (outside the U.S.) or Form I-485 (legally present in the U.S.) for a green card.

How the CSPA Impacts Child Derivative Beneficiaries of Family- and Employment-Based Visa Petitions

The CSPA can also protect the child derivative beneficiaries of other family-based visa petitions, making sure that they can still be included in their parents’ applications when they would have “aged out” in the past. For example, if you are a U.S. citizen, you can petition using Form I-130 for a green card for your unmarried or married sons and daughters and for your siblings. In these petitions, derivative beneficiaries may also be included (namely, your grandchild, niece, or nephew). The same guidance and calculations from the previous section apply to you, except that you will be checking preference categories “F1,” “F3,” and “F4” in the Visa Bulletin.

The CSPA also applies to child derivative beneficiaries of employment-based visa petitions using Form I-140, Petition for Alien Worker. (For more information on applying, see “Filling Out Form I-140 to Sponsor an Immigrant Worker.”) While “aging out” is usually not an issue for priority workers, special immigrants, and religious workers, it can be a large issue for other preference categories, especially petitions from China, India, Mexico, and the Philippines. You can also calculate “CSPA age” for children included in employment-based petitions using the Visa Bulletin, but the calculation will be slightly different. The priority date that you will use depends whether or not labor certification was required. If so, your priority date is the date that the labor certification was filed – otherwise, you can use the date Form I-140 was received.

The CSPA Also Allows Permanent Residents to “Opt Out”

The CSPA also allows LPRs who have filed Form I-130 on behalf of their unmarried son or daughter to “opt out” of (say "no" to) having their petition transferred to preference category “F1” if they naturalize before a visa becomes available. You might wonder why you would ever want to “opt out” of one of the benefits afforded to U.S. citizens. But oddly enough, the F1 category has always been more oversubscribed than the F2A category for the unmarried sons and daughters of LPRs.

The CSPA essentially allows an LPR with a pending I-130 for who later naturalizes to choose to be in the category in which a visa is available sooner. If this applies to you, the beneficiary child will need to notify USCIS in writing if he or she decides to remain in the F2A category.

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