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 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 for a visa in a different category; 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 petition for your child (on Form I-130), or if you are 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.
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 a Child.)
While "children" and "sons and daughters" might sound like the same thing, their two categories, based on being under or over 21, 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." 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 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 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.)
If you are a permanent resident who didn't include your minor (under-21) 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 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. Visa availability depends on having a current priority date, as discussed further below; bearing in mind that only the "Final Action Dates" shown in the Visa Bulletin count in this process, rather than the "Application Filing Date" that allows some people to turn in their application early, before a visa is actually available.
(We should also mention that this law doesn't apply to older cases, where the I-130 was either pending or approved on or after August 6, 2002 or the beneficiary child didn't receive a final decision on the adjustment of status or immigrant visa application before August 6, 2002. It's almost impossible, however, that anyone would fit this description by now.)
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 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. (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 (two years, four months, and 16 days) for a visa to become available. So your child's CSPA age is roughly 20 years and three 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.
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 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 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 F2B category for the 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.