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

Turning 21 was a big problem for immigration children before the Child Status Protection Act (CSPA). Prior to its 2002 passage, many children with pending immigrant petitions "aged out" (that is, lost their eligibility or had to switch to a slower, less beneficial visa category) if a visa did not become available before their 21^st birthday. Long waits are common, especially because of annual visa limitations and thus often-lengthy green-card wait times for unmarried, under-21 children of U.S. lawful permanent residents.

Post-CSPA, 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 and how you can take advantage of the CSPA if you are either:

• a U.S. permanent resident who filed a family-based petition for your child (on Form I-130), or
• a U.S. citizen with a pending I-130 petition for a family member whose 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., see How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens for information more applicable to your situation.

How Permanent Residents Can Sponsor Children for Green Cards

First, let's explain some basic immigration concepts. Lawful permanent residents (LPRs) can file what is known as a "family-based" immigration petition for their children (under 21) and for their unmarried sons and daughters (over 21) 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 Unmarried, Minor Child.)

While "children" and "sons and daughters" might sound like the same thing, they are two distinct categories, based on being under or over 21. If you visit the DOS Visa Bulletin, you can see that the children of LPRs are in visa preference category "F2A." The sons and daughters of LPRs are in category "F2B."

These categories are important for this discussion of the CSPA because of the huge differences in average wait times. In recent years, category F2A sometimes have no wait at all. But F2B almost always has a wait of at least five years, so you'll want to avoid having your child "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 I-130 petitions were first filed one day before the date posted are only now eligible to continue the application process and receive their green cards.)

How the CSPA Impacts Child I-130 Petitions Filed by Permanent Residents

If you are a permanent resident who didn't include your minor (under-21) child as a derivative beneficiary when you yourself first got a green card (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, your child would immediately have been moved down to category F2B. As you can see, this meant a potentially long wait for a green card, and through no fault of the child's.

But thanks to the CSPA, a child's I-130 petition is protected if the applicant "seeks to acquire" the green card within one year of a visa becoming available, by filing Form 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. Visa availability depends on having a current priority date, as discussed further below (though in category F2A, children have been "current" immediately for some time, as of early 2023).

If a wait in category F2A comes back again, and if you're adjusting status (getting your green card while living in the U.S., without departing to visit a U.S. consulate), you don't need to wait for a priority date that appears under the "Final Action Dates" shown in the Visa Bulletin. Instead, you can go by the "Application Filing Date," which allows some people to turn in their application early, before a visa is actually available. (This was a policy change announced by USCIS on February 14, 2023.)

By looking at the "priority date" (the date your Form I-130 was received by USCIS) and 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 turns 21 and your Form I-130 has not been approved or the 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. (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, 1999 and, because of when the U.S. petitioner filed the I-130, has a priority date of August 15, 2020 in category F2A. Next, let's imagine that a visa became available for your child in the August 2021 Visa Bulletin. You would first need to determine what your child's age was in days on the first day of the month of the Visa Bulletin (in this case, August 1, 2021). You can do this easily with a date-to-date calculator: It's 7,915 days (or 21 years, 8 months, and 2 days).

Next, subtract the number of days your I-130 was pending at USCIS 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 352 days (11 months, 18 days) for a visa to become available. So your child's CSPA age is roughly 20 years and eight months, meaning your child 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 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, using Form I-130, petition for a a green card for either your unmarried or married sons and daughters or 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 applicants in other preference categories, especially petitions from China, India, Mexico, and the Philippines. You can also calculate "CSPA age" for children who are derivatives 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 Allows Some 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 is often more oversubscribed than the F2B category for unmarried sons and daughters of LPRs.

The CSPA essentially allows an LPR with a pending I-130 who later naturalizes to choose 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 F2B category.

Getting Legal Help

If you're having any trouble figuring out your child's right to a visa under the CSPA, or USCIS isn't recognizing those rights, it's a good time to consult an experienced immigration attorney.