How does CSPA protect children from aging out?
We all know that the wheels of government organizations can turn slowly. The United States Citizenship and Immigration Service (USCIS) is no different. Considering the number of months, or even years, that the immigration process can take, often children who are young at the time of application may have reached adulthood by the time they are eligible for an adjustment of status.
There are several immigration categories where an individual must be under the age of 21 to qualify. But what if they were under 21 at the time of approval but in their early twenties by the time a visa has become available? The good news is that the Child Status Protection Act (CSPA) allows for calculations that regress a young adult’s age to that which they were earlier in the immigration process.
What is the Child Status Protection Act?
The Child Status Protection Act (CSPA) was codified in 2002 to change the laws regarding who can be considered a “child” for immigration purposes. In the field of immigration, the term, “child,” refers to an unmarried person who is under the age of 21.
Whether or not a person is considered a child can be important when a foreign national is young when they apply for a green card but have turned 21 by the time the petition has been approved and they are able to adjust their status. The CSPA was enacted to protect youth from aging out while their applications for lawful permanent residency are being processed.
By allowing for different calculations of age while a green card application is being adjudicated, hardships can be prevented that would otherwise keep a young person from attaining lawful permanent resident status. The processing of immigration applications can have a long timeline, and sometimes unexpected delays can make the process even more lengthy.
Now that the Child Status Protection Act has become part of immigration law, aged-out child green card applicants can feel more at ease with the processing period of their USCIS forms, because their age will be calculated according to a separate formula. Even if they age out beyond 21 years old, they may still qualify for lawful permanent resident status.
On November 13, 2020, the USCIS issued new guidance on CSPA age determination and the Sought to Acquire requirement.
Who may benefit from the CSPA?
Individuals who are aged-out children may benefit from CSPA calculations when adjusting their status to a green card, so long as their Form I-485 or the underlying approved petition was filed on or after August 6, 2002. Underlying green card petition forms for which CSPA calculations would apply are the following:
If an underlying green card application has a final action date that is earlier than August 6, 2002, CSPA aged-out child calculations may not apply. However, a notable exception is when the foreign national files the Form I-485 after August 6, 2002, even though the underlying petition was approved prior to the enactment of CSPA.
Ways to Calculate the Age of the Child
The USCIS policy manual provides a variety of scenarios in which a foreign national would need to calculate a child’s age with regard to CSPA. Calculations for aged-out children can vary depending on the category under which they applied for an immigrant visa.
Applications Involving Immediate Relatives
In order for an aged-out child to calculate their years based on the Child Status Protection Act, the foreign national must have remained unmarried. Furthermore, the applicant for adjustment of status must have been younger than 21 years old and unmarried when their Form I-130 or I-360 form was originally filed. If the filing date was prior to the enactment of the CSPA, then the I-485 application to adjust status should have been submitted after August 6, 2002.
When a child is a derivative beneficiary of a Form I-130 based on a parent’s marriage to a U.S. citizen or lawful permanent resident, who subsequently dies before the child and foreign national parent can adjust their status, this application can be converted to a Form I-360 widow(er) petition, of which the child would be a derivative beneficiary. In such cases, the Child Status Protection Act can still be applied to an unmarried, aged-out child.
To calculate a child’s age under CSPA in this category, it is fairly simple. For immediate relatives and immediate relative self-petitioners or derivatives that qualify under the Violence Against Women Act (VAWA), a child’s age is solidified on the date that the Form I-130 is filed. However, if a petition must be converted to a Form I-360 widow(er) petition, the child’s age is frozen on the date of conversion.
For example, if a child’s mother marries an American citizen, and then the child is a derivative beneficiary of their mom’s Petition for Alien Relative, which is filed on December 1, 2018 when the child is 15 years, 10 months old, their age is frozen at that age for purposes of the petition, regardless of when they adjust their status to a green card. However, if the American citizen passes away 11 months later on November 1, 2019, and the foreign national’s widow’s petition converts to an I-360 application, the child’s age will be fixed at 16 years, 9 months old. It is important that the child be under 21 and unmarried on the date of the conversion from the Form I-130 petition to the Form I-360 widow(er) filing.
Derivative Asylees and Refugees
The CSPA calculation of the age of children who are derivative beneficiaries of applications for asylum or registration of refugee status is similar to that of immediate relatives, and offspring of widows or widowers.
Under the Child Status Protection Act, an unmarried person who is under the age of 21 at the time of filing the principal’s Application for Asylum and for Withholding of Removal (Form I-589) will be considered a child when it is time to adjust their status to a green card. Even if the derivative asylee has aged-out by the time a visa is available to them, their age will have been fixed at the date of filing of the principal’s I-589 application, rather than the date of the Form I-730, Refugee/Asylee Relative Petition or the Form I-485, which is used to adjust status.
The principal asylee should be sure to list the child on their original Form I-589, in order to fix the youth’s age at the time of filing. Otherwise, an aged-out child will need to overcome this failure to list them on the original application by providing proof of a parent-child relationship and age, as well as a reasonable explanation about why the son or daughter was omitted from the Form I-589 when it was filed.
For example, a child’s father files a Form I-589 on January 1, 2014, and includes their son as a derivative beneficiary on the form. On January 1, 2014, the boy is 18 years, 2 months old. A visa becomes available on January 1, 2017 when the boy is 21 years, 2 months old, and he is not married. That means that the father can include his son as a derivative asylee when he files to adjust his status to lawful permanent residency. Even though the unmarried son has aged-out, under the CSPA he will be viewed as a child that is 18 years, 2 months old, because that was his age at the time of filing the original application.
For derivative refugees, the CSPA calculation is even simpler. As with the asylum application, a child’s age is fixed on the date of filing of the Form I-590, Registration for Classification as a Refugee. Even if the child is over the age of 21 by the time the refugees are able to adjust their status to a green card, they have not aged out under the Child Status Protection Act. Moreover, a derivative refugee is free to get married, as they do not need to remain unmarried until they get their green card. Under Section 209 of the Immigration and Nationality Act, derivative refugees can be married at the time of filing their Form I-485 to adjust their status.
As with derivative asylees, an unmarried child refugee who is under the age of 21 should have been listed on the original Form I-590. Otherwise, if they are aged-out when a visa becomes available, they will need to demonstrate that there is a parent-child relationship, provide proof of age, and explain why the youth was omitted from the principal’s original Registration for Classification as a Refugee.
Family, Employment-based, and Diversity Visa Applications
The Child Status Protection Act applies differently to persons who have applied for green cards based on family, employment, or the Diversity Visa program. With these types of petitions, a child’s age does not freeze in time when the application is filed. Instead, there is a mathematical formula to calculate the adjusted age of a seemingly aged-out unmarried child.
Also, for the CSPA to apply to an aged-out child, they must have applied to adjust their status to a green card within one year of a visa becoming available. This is called the Sought to Acquire requirement.
To calculate the age of a child who has applied for a green card based on family, employment, or the Diversity Visa program, the formula is as follows:
Age at time of visa availability minus (-) Pending Time = CSPA Age
It is notable that, although a child needs to apply for an adjustment of status to benefit from the Child Status Protection Act, the date that they file their I-485 form does not factor into the equation to determine their CSPA age. Although a green card derivative beneficiary may have several approved petitions, they must calculate their CSPA age based on the application for which a visa is available.
To figure out the appropriate CSPA age of a child, one must first determine the Pending Time. The Pending Time is not how long it takes for a visa to become available. In actuality, Pending Time is the duration of time between the filing of the green card application and the date of its approval. So if a foreign national files a green card application on January 1, 2019, and after one Request for Evidence (RFE) letter and a response to it, they receive a notice of approval dated February 1, 2020. Therefore, the Pending Time is 1 year, 1 month, because that is the amount of time from filing to approval.
For example, a foreign national computer programmer files an EB-2 second preference employment-based Form I-140 on September 1, 2002, a date which is after the enactment of the Child Status Protection Act. He includes his daughter on his Form I-140 as a derivative beneficiary. His daughter is 3 years, 6 months old on the date of filing. The petition is approved 3 years, 3 months later on December 1, 2004. The computer programmer checks the Visa Bulletin for December 2020 and finds that he is finally eligible for an immigrant visa, according to his Priority Date. When he files his Form I-485 to adjust his green card in December 2020, his daughter is 21 years, 9 months old.
Therefore, the computer programmer’s daughter is still considered a child under the CSPA. Even though her real age is actually 21 years, 9 months old, she has not aged-out. Per CSPA, the daughter is still a 19 year, 6 month old “child.” The Child Status Protection Act has made it possible for her to still qualify as a derivative beneficiary.
Sought to Acquire Requirement
In addition to meeting the CSPA age requirement, and in some categories, remaining unmarried, there is also a mandatory criteria that foreign nationals intend to adjust their status to a green card within one year of a visa becoming available.
To meet the Sought to Acquire requirement, a foreign national can do any one of the following: