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Child Status Protection Act (CSPA)

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Sep 30, 2019)

Many of immigration benefits for children, requires them to be unmarried and under 21 at the time they receive immigration benefits. Because of backlogs and delay in adjudication of applications, children often passed their 21st birthday by the time Topic image for Child Status Protection Act (CSPA) their eligibility was established, and then became ineligible because they “aged out” (i.e., they reached 21). To prevent this situation, Congress passed Child Status Protection Act (CSPA), which became law on August 6, 2002.  CSPA provides significant protection to the children who are in the process of receiving immigration benefits, either by "freezing" their age at a certain time or by deducting some time from their age, depending on the circumstances described below.

Who qualifies for Child Status Protection?

Condition CSPA Protection
Children (unmarried and under 21) of U.S. citizen parents, who are beneficiaries of immediate relative petitions filed by their parents The child's age freezes at the time the petition (I-130) iss filed.
Children of U.S. permanent resident parents, who are beneficiaries of relative petitions filed by their parents The child's age freezes, when the petitioner becomes a United States citizen. You can opt-out of this benefit (see below).
Children who are beneficiaries or derivative beneficiaries of a permanent residence classification petition The time that the USCIS takes to adjudicate the petition will be deducted from the child's biological age at the time of visa availability.
Children of refugees and asylees The child's age freezes at the time the application is filed, i.e., I-598 (Application for Asylum and Withholding of Removal) and I-590 (Registration for Classification as a Refugee)

Under all of these conditions, the child must remain unmarried.

If a U.S. citizen files an immigrant petition for a married son or daughter, who is under 21, and the son or daughter later obtains a divorce prior to his or her 21st birthday, the petition immediately converts to an immediate relative petition and the son or daughter retain his or her age at that time.

What are the eligibility criteria for Child Status Protection?

To receive the benefits of CSPA, the child must meet the following requirements:

  • The child must be the beneficiary of a petition which is approved on or after August 6, 2002. If the petition was adjudicated before August 6, 2002, then CSPA would not apply.
  • The child must “seek to acquire” permanent residence no later than one year after "the date a visa becomes available" to the child by (a) filing an Application for Action on an Approved Application or Petition (Form I-824), Application to Register Permanent Residence or Adjust Status (Form I-485), or U.S. Department of State's Application for Immigrant Visa and Alien Registration (Form DS-230).

There is a limited exception for those applying after one year, if (a) their classification petition was approved before August 6, 2002, but they had not received a final decision on their application for permanent residence, (b) a visa becomes available on or after August 7, 2001, and (c) they meet eligibility requirements under CSPA.

When is a visa deemed to have become available?

A visa is considered to have become available when the petition is approved or on the first day of the first month the child's priority date is current on the U.S. Department of State's Visa Bulletin, whichever later.

What is the impact of Visa Regression or Visa Retrogression?

Visa availability, listed on the U.S. Department of State's Visa Bulletin, usually moves up every month. From time to time, due to unexpected demands, the visa availability goes backward. This event is called "Visa Regression" (or "Visa Retrogression").

The USCIS describes its current policy for dealing with Visa Regression as follows: "When a visa becomes available, but regresses before one year has lapsed, we currently restart the one year clock the next time it becomes available.  The caveat is that we do the age calculation based on the new visa availability date, so it is in a beneficiary's best interest to seek to acquire [a visa] as soon as possible when it comes to CSPA age-out. The same can occur multiple times, as long as the visa was never available for a full year."

To be safe, you must act within one (1) year from the date when a visa first becomes available, regardless of any subsequent Visa Retrogression.

If you file an application for adjustment of status and subsequently the visa availability retrogresses (i.e., goes back), the USCIS will keep your application and will adjudicate it when the visa becomes available again.

When would it be beneficial to op-out of CSPA protection?

When a permanent resident petitioner files a petition for an unmarried son or daughter, the beneficiary will be classified as a second preference immigrant for family-based immigration. If the permanent resident petitioner later becomes a citizen, under CSPA, the beneficiary will be converted to first preference (as an unmarried son or daughter of a U.S. citizen). However, that beneficiary may elect to remain in 2nd preference, instead of being converted into the 1st preference. In limited circumstances, this may be beneficial, because visa availability under 2nd preference may come sooner than under the 1st preference.  See Family-Based Immigrants.  To opt-out, the beneficiary must send a written request to the USCIS.

Related Topics:

Derivative Beneficiaries

Priority Date & Visa Availability

Consular Processing

Adjustment of Status

 

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