CHILD STATUS PROTECTION ACT (CSPA)
The Child Status Protection Act (CSPA), Pub. L. 107-208 (Aug. 6, 2002), was enacted to provide relief to children who "age-out" [become 21 years old] as a result of delays by the Citizenship and Immigration Services (CIS) in processing visa petitions and asylum and refugee applications. A "child" is an unmarried individual under 21 years of age. The CSPA does not change this definition, but instead changes the point at which the child's age is calculated.
Prior to the CSPA, an application for permanent residency as a direct or derivative beneficiary child would be approved only if adjudicated prior to the child turning 21 and remaining single. Upon turning 21, a child would "age out" and lose the preferential status of a child. As the result of agency backlogs and delays, many children aged out before their cases were complete and were no longer eligible to get permanent residence. For cases to which it pertains, the CSPA now locks in the age of the child at an earlier date in the process, and in this way will preserve the status of "child" for many individuals who otherwise would age out.
The new method of calculating a person's age varies depending on the type of immigration benefit that is sought. The CSPA applies to:
· Derivative beneficiaries of asylum and refugee applications;
· Children of Lawful Permanent Residents (LPR); and
· Derivative beneficiaries of family-based, employment-based, and diversity visas.
According to the CIS, the CSPA does not apply to applicants for or derivatives of Nicaraguan Adjustment and Central American Relief Act; Haitian Refugee Immigration Fairness Act; Family Unity; Special Immigrant Juvenile status; or non-immigrant visas (including K and V visas).
Under the CSPA, when a
There are two modifications to this general rule, both of which involve conversions of a petition from a preference category to the Immediate Relative category. First, when an LPR petitions for a child under the 2A preference category, and the LPR naturalizes while the petition is pending, the age of the child will be locked in on the date of the parent's naturalization. If the child is under 21 on that date, the petition will be converted to an Immediate Relative petition.
Second, when a USC parent files a petition for a married
son or daughter, and the son or daughter legally terminates the marriage while
the petition is pending, the son or daughter's age will be locked in on the date
that the marriage is legally terminated. If under 21, the petition will be
converted to an Immediate Relative petition.
Additionally, although not in the statute, DOS has made clear that it will allow a beneficiary who is eligible for Immediate Relative status due to the CSPA to opt out of the CSPA and instead be processed under the first preference category if the beneficiary requests this, and if the priority date falls within the first preference cut-off date. A beneficiary with children might chose to opt out of the CSPA in order to bring in his or her children as derivatives - an option that is not open to Immediate Relatives.
The process for determining the age of the child of an LPR, or the derivative of a family-based, employment-based or diversity visa is more complicated. In these cases, the beneficiary's age will be locked in on the date that the priority date of the visa petition becomes current, less the number of days that the petition is pending, but only if the beneficiary seeks to acquire the status of an LPR within one year of the date the visa became available. CSPA § 3. This formula can be broken down into three steps:
· First, determine the child's age at the time a visa number becomes available;
· Second, subtract from this age the number of days that the visa petition was pending; and
· Third, determine whether the beneficiary sought LPR status within one year of the visa availability date.
Each of these three steps is complex and to be completely safeguarded, should be analyzed by an immigration official or competent attorney who can determine whether or not the child qualifies for CSPA benefits.
The CSPA also provides that a family-based visa petition
filed by an LPR on behalf of an unmarried son or daughter (who is over 21) will
automatically convert to a first preference petition if the LPR naturalizes
while the petition is still pending. If the beneficiary was assigned
a priority date prior to the conversion of the petition, he or she will maintain
that priority date after the conversion.
The beneficiary may elect not to have the petition
converted - or if already converted, to have the conversion revoked - by
submitting a letter to CIS, and the case will continue as if the parent had not
naturalized. This option will primarily benefit Filipinos
because the backlog for the first preference category for the
CSPA was effective on August 6, 2002. It applies to all children who turn 21 after this effective date, provided all other requirements of the CSPA are met. The statute also directs that it applies to three sets of cases that were not finally adjudicated on August 6, 2002, even where the child turned 21 prior to the effective date of the statute:
· Cases in which the visa petition was approved prior to August 6, 2002, but a final determination has not been made on a beneficiary's application for an immigrant visa or adjustment of status pursuant to the approved petition;
· Cases in which the visa petition is pending on or after August 6, 2002; and
· Cases in which the application for an immigrant visa or adjustment of status is pending on or after August 6, 2002.
CIS will apply the CSPA to Cases in which the child ages out after August 6, 2002; Cases in which the child aged out prior to August 6, 2002, if the visa petition was filed prior to and remained pending on that date; Cases in which the child aged out prior to August 6, 2002 and the visa petition was approved prior to August 6, 2002, but only if the beneficiary applied to adjust prior to this date and there was not yet a final determination on this application.
DOS will apply the CSPA to Cases in which the visa petition is filed after August 6, 2002; Cases in which the visa petition is approved after August 6, 2002; Cases in which the visa petition was approved prior to August 6, 2002 if the child aged out after August 6, 2002; Cases in which the visa petition was approved prior to August 6, 2002 and the child aged out prior to that date, if the child applied for an immigrant visa and the visa was refused between August 6, 2001 and August 5, 2002; Cases in which the visa petition was approved prior to August 6, 2002, and the child applied for an immigrant visa which was refused prior to August 5, 2001, but only if the refusal was based on INA § 221(g), 8 U.S.C. § 1201(g); or the child applied for a waiver and the waiver application remained pending.
Because of the complexity of this law, you are best advised to seek the analysis by a competent immigration attorney. Consult us.