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Child Status Protection Act

Child Status Protection Act (CSPA)

 

What is Child Status Protection Act?

Child Status Protection Act is designed to address the problem of minor children losing their eligibility for certain immigration benefits as a result of the USCIS’ case processing delays. Prior to the CSPA, in order for a minor child to immigrate as a “child” defined under the immigration laws, the child’s immigrant status must be granted before the child’s 21st birthday. Because of visa backlogs and case processing delays, many children turned 21 before they can be granted legal permanent resident status (green card holder). As a result, the child “aged-out” and was ineligible to become a permanent resident as a “child” from his or her parent’s immigration petition. The child’s petition was either automatically moved to a lower preference category, which takes a longer time, or the original petition was no longer viable and the child was required to submit his or her own petition, which results in years of delays or possible ineligibility. Children under certain situations can be benefited under the CSPA.

Who can be benefited under Child Status Protection Act?

Age-Out Protection for Children of U.S. Citizens

The CSPA provides aging out protections to the children of U.S. citizens in the following ways:

  • It provides that the age of a U.S. citizen’s child (under 21 years of age) is based on the date on which the I–130 immigration petition was filed.
  • If a family-based immigration petition is filed by a legal permanent resident (LPR) for his or her alien child and the permanent resident subsequently becomes U.S. citizens through naturalization, CSPA provides that if the second preference petition on behalf of the alien child is converted to an immediate relative petition based upon the parent’s naturalization, the child’s eligibility for immediate relative status will be determined based upon the date of his or her parent’s naturalization.
  • If a U.S. citizen parent file family-based immigration petition for married sons or daughters and the sons or daughters later divorce, and if the original third preference petition (married son or daughter of U.S. citizen) is later converted to an immediate relative petition because of the son or daughter’s divorce, the child’s eligibility for immediate relative status will be determined based upon his or her age on the date of the divorce.
Petitions for Sons and Daughters of Permanent Residents Becoming Naturalized Citizens

The CSPA provides that family-based petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized U.S. citizen will be converted to a petition for an unmarried son or daughter of a U.S. citizen, unless the son or daughter elects otherwise. Regardless of whether the petition is converted, the son or daughter may retain the priority date on the original petition.

Age-Out Protection for the Children of Legal Permanent Residents

The CSPA provides age-out protection to the children of lawful permanent residents, including children who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants:

  • In the case of a LPR petitioning immigration status for his or her alien child, the age of the child is calculated based on the date on which an immigrant visa number becomes available and then reduced by the number of days the petition was pending. But this is true only if the alien seeks to acquire permanent resident status within one year of such availability. For example, if an alien who is 21 years and eight months old on the date the visa number became available, but his immigrant visa petition was pending for ten months, he can have his age reduced by ten months and becomes 20 years and 10 months old; therefore he is still considered a child in the immigration petition.
  • CSPA also provides that if the alien is determined to be 21 years of age or older at the time the visa number becomes available, notwithstanding the age -out protection extended under this section, his or her petition will automatically be converted to the appropriate category (typically the 2B son or daughter of permanent resident category), and the alien will retain the priority date associated with the original petition.
Asylum and Refugee Applicants

The CSPA provides age-out protection to the children of asylum applicants. It provides that an unmarried alien who seeks to accompany or follow to join a parent granted asylum, and who was under 21 years of age on the date the parent applied for asylum but turned 21 during the pendency of the application, will continue to be classified as a child for purposes of derivative asylum benefits. The new law also extends this same protection to the children of aliens granted refugee status.

Other Miscellaneous Sections

The CSPA provides that nothing in the new law may be construed to limit or deny benefits provided under INA Section 204(a)(1)(D) (battered immigrant children). It also provides that the age-out relief extended under the legislation took effect upon enactment and applies to: (1) immigrant petitions that have been approved but where no determination has yet been made on the application for an immigrant visa or adjustment of status; (2) immigrant petitions pending before or after the enactment date; and (3) applications pending before the Department of Justice or Department of State on or after the enactment date.

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