The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card.
Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6, 2002.
CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. The calculated age is the child’s “CSPA age.” This allows some people to remain classified as children beyond their 21st birthday. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child.
CSPA applies only to the following people:
- Immediate relatives;
- Family-sponsored preference principal applicants and derivative applicants;
- Violence Against Women Act (VAWA) self-petitioners and derivative applicants;
- Employment-based preference derivative applicants;
- Diversity Immigrant Visa (DV) derivative applicants;
- Derivative refugees; and
- Derivative asylees.
If you are applying for a Green Card based on one of the categories above, you are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status or one of the following underlying forms was filed or pending on or after August 6, 2002:
- Form I-130, Petition for Alien Relative;
- Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant;
- Form I-140, Immigrant Petition for Alien Worker;
- Form I-589, Application for Asylum and for Withholding of Removal;
- Form I-590, Registration for Classification as a Refugee; or
- Form I-730, Refugee/Asylee Relative Petition.
CSPA for Refugees and Asylees
If you are a derivative refugee, your CSPA age is your age on the date your principal refugee parent or Form I-730 petitioner filed his or her I-590, which is the date of his or her interview with a USCIS officer. If you were under the age of 21 at the time of your parent’s interview, your age is frozen as of that date and you will not age out. While you must be unmarried to qualify for admission into the U.S. as a derivative refugee, you do not need to remain unmarried in order to qualify for a Green Card under INA section 209.
If you are a derivative asylee, your CSPA age is your age on the date your principal asylee parent or Form I-730 petitioner filed his or her Form I-589. If you were under the age of 21 at the time your parent filed Form I-589, your age is frozen as of that date and you will not age out. Unlike derivative refugees, you must be unmarried in order to qualify for a grant of derivative asylum and to qualify for a Green Card under INA section 209.
CSPA for Immediate Relatives
If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. However, you must remain unmarried in order to qualify.
CSPA for Family and Employment Preference and Diversity Visa Immigrants
If you are a family preference (including VAWA), employment-based preference, or DV applicant, your CSPA age is calculated by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at time of visa availability). However, you must remain unmarried in order to qualify.
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The formula for calculating CSPA age is as follows:
Age at Time of Visa Availability - Pending Time = CSPA Age
You are 21 years and 4 months old when an immigrant visa becomes available to you. Your petition was pending for 6 months. Your CSPA age is calculated as follows:
21 years and 4 months - 6 months = 20 years and 10 months
Age at Time of Visa Availability
The date the visa is considered available is the later of these two dates:
- The date the petition was approved; or
- The first day of the month of the Department of State Visa Bulletin that indicates that a visa is available for you in the Final Action Dates chart.
For DVs, the date a visa is considered available for CSPA purposes is the first day on which the Department of State can allocate a visa number based on the principal applicant’s rank number.
The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. The formula determining the length of time the petition was pending is as follows:
Approval Date - Filing Date = Pending Time
Your mother filed a petition for you on February 1, 2016. USCIS approved the petition on August 1, 2016.
August 1, 2016 - February 1, 2016 = 6 months
For DV derivative applicants, the number of days the petition was pending is the period of time between the start of the DV Program registration period to the date of the DV selection letter.
The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013.
May 1, 2013 - October 1, 2012 = 7 months
Sought to Acquire Requirement
In order to benefit from CSPA as a family preference (including VAWA), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of a visa becoming available to you. This is referred to as the “sought to acquire” requirement.
You may satisfy this requirement by:
- Properly filing a Form I-485, Application to Register Permanent Residence or Adjust Status; or
- Submitting a completed Part 1 of Form DS-260, Immigrant Visa Electronic Application; or
- Having a Form I-824, Application for Action on an Approved Application or Petition properly filed on your behalf.
If you fail to satisfy the sought to acquire requirement, USCIS may use its discretion to excuse you from this requirement if you can establish that your failure to do so was the result of extraordinary circumstances.
Naturalization of the Petitioner in Family Preference Cases
When a lawful permanent resident (LPR) files a Form I-130, Petition for Alien Relative for his or her child or unmarried son or daughter, the petition is classified as a family second preference case. If the petitioner naturalizes (becomes a U.S. citizen) before the child or unmarried son or daughter gets a Green Card, the petition is converted to either an immediate relative or family first preference case.
Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative)
If your LPR parent filed a Form I-130 for you as his or her child and then your parent became a U.S. citizen before you turned 21, your age “freezes” on the date your parent became a citizen. You become an immediate relative and will not age out.
Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1)
If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you normally would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). However, you may choose to opt out of the automatic conversion and stay in second preference classification (F2B) if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. You may check the Visa Bulletin to see if opting out of automatic conversion may result in a shorter waiting time for you.
If you want to opt out of the automatic conversion, you must submit a written request to the USCIS office that approved your Form I-130. You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. This letter should also include your and your parent’s names and dates of birth and the receipt number for your Form I-130. You can find the receipt number on the receipt and approval notices. The approval notice will also show you which office approved your Form I-130.
CSPA for K-2 and K-4 Nonimmigrants
While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances.
Limited CSPA Coverage for K-2 Nonimmigrants
As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fiancé(e) of a U.S. citizen), you typically get a Green Card based on your admission into the U.S. with a K-2 visa and your K-1 parent’s marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the United States as a K-2 nonimmigrant, you will not age out of eligibility for a Green Card. In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card.
You are only eligible for CSPA if you are the beneficiary of a Form I-130, Petition for Alien Relative. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days (a requirement for getting a Green Card based on K-1 and K-2 nonimmigrant status), your stepparent might choose to file a Form I-130 for you. When your stepparent files a Form I-130 for you, you become an immediate relative who can use the CSPA when applying for a Green Card.
In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K‑1 nonimmigrant parent must have occurred before your 18th birthday. Since your age “freezes” on the date your stepparent files the Form I-130, you may benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday.
Limited CSPA Coverage for K-4 Nonimmigrants
If you are a K-4 nonimmigrant, you are eligible for CSPA because you will apply for a Green Card as an immediate relative based on a Form I-130 filed by your U.S. citizen stepparent.
In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K‑3 nonimmigrant parent must have occurred before your 18th birthday. Since your age “freezes” on the date the Form I-130 is filed, you benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday.
Regardless of your individual circumstances, working with an experienced US Immigration Child Status Protection Act attorney is an important choice you can make to help improve your visa status. Call 855 461 0009 to speak with a US Immigration Child Status Protection attorney today for a Free Immigration Child Status Protection law consultation.