The Child Status Protection Act (CSPA) was enacted in 2002 to help young people who turned 21 years old before U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) approved their green card applications. Turning 21 can be a major problem, because the applicant is no longer considered a minor, and thus (through no fault of their own) can becomes ineligible for the family-based immigrant visa for which they were applying. The situation is often made worse by lengthy delays on the waiting list for a green card and standard USCIS and DOS processing times. Even if a petition was filed for a child well before the 21st birthday, the child could easily "age out" by turning 21 before the petition was approved.
This article will address how the CSPA affects immediate relative petitions by U.S. citizens for their children who were under age 21 at the time of filing. The rules for other family-based applicants and derivative beneficiaries of green cards under the CSPA are trickier and are explained in How the CSPA Helps Family-Based Preference Relatives or Derivative Beneficiaries.
If you are a U.S. citizen hoping to bring your child to the United States or legalize the child's status here, you can save yourself a lot of effort by checking into whether your child is already a U.S. citizen.
The rules for who may acquire U.S. citizenship through parents have changed throughout the years. Broadly speaking, who will qualify for automatic citizenship depends on the child's date of birth, the parent's time spent actually living in the U.S., and other factors. For more information on this, see U.S. Citizenship Through Birth or Through Parents.
A "child" is defined by U.S. immigration law as an unmarried person under the age of 21. Immigration law gives preference to U.S. citizens' "immediate relatives"—namely, spouses and unmarried children under age 21. These immigrants are not subject to the statutory limits on the number of green cards that USCIS and DOS can issue each year, and therefore do not face long waits before a green card becomes available to them.
Before the CSPA, even U.S. citizens needed to file a Form I-130 petition well in advance of their child's 21st birthday to ensure that the child did not "age out" before USCIS got around to approving the petition. Due to normal processing delays, aging out was unavoidable for many children of U.S. citizens.
Now, as long as USCIS receives Form I-130 at least one day before your child turns 21, your child will be considered an "immediate relative" even if the child is 21 or older by the time the petition is finally approved by USCIS.
So as to avoid long waits, U.S. citizens hoping to bring children to the U.S. to live permanently should definitely file Form I-130, Petition for Alien Relative, BEFORE the child gets married and BEFORE the child turns 21. By doing this, these children will not have to wait for an immigrant visa to become available. To learn more about the application process, see Filling Out and Submitting Form I-130 for a Child.
Be aware that even if your child is under 21 at the time you file Form I-130, if the child gets married before receiving a green card, the petition will no longer be considered to be an "immediate relative" one. Unfortunately, your child's marriage will trigger a significantly longer wait for a green card, in one of the "preference" categories of U.S. immigration.
What if you are a U.S. lawful permanent resident (LPR) whose child is living abroad? Unfortunately, minor children of green card holders are not considered to be "immediate relatives" under the CSPA. They face delays in receiving green cards if they were not included as derivatives at the time that you applied for permanent residence. To see the current processing times for these petitions in family-based preference category "F2A," view the U.S. State Department's Visa Bulletin.
Although the CSPA offers them some protection (as described in How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries), an even better approach would be if you can convert your immigrant visa petition to "immediate relative." This is possible if you become a U.S. citizen before your Form I-130 is approved and your child is under age 21 when you receive your naturalization certificate. In this scenario, your child's age will "freeze" on the date that you naturalize. For more on this, see How Naturalizing Helps Your Foreign-Born Children Immigrate.
U.S. citizens' married children—even if under age 21—are not considered "immediate relatives," and are also processed as family-based preference category applicants. However, if the child's marriage is terminated before he or she turns 21, you can convert the visa petition to immediate relative by notifying USCIS. These situations are rare, but not unheard of.
Example: Let's say you have a daughter who is 18, but she is married. If you file Form I-130 now, the petition is placed in the "F3" family-based preference category, and as you can ordinarily expect a wait of ten to 20 years for a visa to become available. Two years pass and your daughter is now 20, but she has divorced and has an official divorce decree. You can take advantage of the "aging out" protections of the CSPA by notifying USCIS that she can now be considered an immediate relative. This is also true if your daughter's husband dies before she reaches age 21.
Unfortunately, there can be no derivative beneficiaries for immediate relative petitions. That means if your daughter has her own child that she would like to bring to the U.S., that child cannot be included if you convert her petition.
If you're in doubt about which family members can immigrate in which categories, or would like assistance deciding on the best application strategy, preparing the paperwork, and monitoring the application through the process of approval, it would be worth consulting an experienced immigration attorney.