Turning 21 is usually celebrated but not when it comes to US immigration. A child is considered to have “aged out” when they turn 21 and no longer qualify as a “child” under immigration law. So, let’s learn more about the child status protection act and how you can benefit from it.
Why is the CSPA important? Well, we all know that US immigration is a lengthy process and many children would “age out” by the time their visa was approved. In 2002, the Child Status Protection Act (CSPA) was created to avoid just this type of scenario.
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CSPA protects children from being denied while waiting for their visa to be approved simply because they’ve turned 21.
In this post, I will only be discussing how the CSPA affects immediate relatives of US citizens (such as the child of a spouse or fiancé of an American).
Julio’s son Yaro is 20 years old and he wants to bring him to the US to live with him. He is about to turn 21 in just a few months so Julio is worried about Yaro aging out and having to wait even longer to get a visa.
After completing the I-130, Julio submit the petition for his son 1 month before his 21st birthday. Will Yaro age out?
The answer to the question about is no. Since Julio submitted his son’s petition before he turned 21, he is protected by CSPA and will still be considered a child even after he turns 21 for immigration purposes.
How US Citizens Can Bring a Child To The US
For your child to qualify as a “child” for immigration purposes, they must meet two criteria:
- Child must be under age 21
- Child must be unmarried
Meeting the above two criteria is a must. However, CSPA protects a child’s status as long as the immediate relative submits their petition 1 day before their 21st birthday.
As long as you ensure that you submit your child’s application 1 day before their 21st birthday, they will be protected under CSPA.
For immediate children, they don’t need to wait for a priority date and will have a visa available right away. In contract, children of green card holders will need to wait for their priority date to become current.
Ahmad filed for a spouse visa for his wife and their two kids who are 15 and 19. He includes his children on his wife’s I-130 and since their kids are both under 21 and unmarried, they are eligible as a “child” for immigration purposes.
In the example above, Ahmad’s kids will be able to qualify as a child and will not risk aging out even if the application process takes years. It’s as if their age is frozen in time so that their immigration application can be completed.
Related Podcast: EP21: How To Apply For Child Visa K2/CR2 Visa
Do You Qualify As Immediate Relative For CSPA?
An immediate relative has a specific definition to USCIS. Don’t think of it as the literal term because a green card holder’s wife and child would not be considered immediate relatives.
Who qualifies as an immediate relative?
- The spouses of U.S. citizens,
- The children (unmarried and under 21 years of age) of U.S. citizens,
- The parents of U.S. citizens at least 21 years old, and
- Widows or widowers of U.S. citizens if the U.S. citizen filed a petition before his or her death or if the widow(er) files a petition within 2 years of the citizen’s death.
Other eligible applicants:
- Direct beneficiaries of family based preference petitions
- Derivative beneficiaries of family and employment-based preference petitions
- Diversity Visa applicants
- Asylee and Refugee derivatives
CSPA protects all immediate relative visa petitions even if you filed before CSPA was created on August 6th, 2002. This is true as long as USCIS hasn’t made a final decision on form I-130 before this date.
Your child has an unlimited amount of time to apply for a green card by filing I-824, Application for Action on an Approved Application or Petition.
But, if your child is already legally inside the US, they can file I-485, Application to Register Permanent Residence or Adjust Status.
How To Use CSPA For I-130 or I-129F Petitions
When it comes to filing the spouse visa or fiancé visa, your child can also be protected from aging out when they turn 21.
So, to avoid this from happening, US citizens should file the I-130 petition as soon as possible. This should be done before the child gets married and before the child turns 21.
By doing this, your child will not hav etc wait for an immigrant visa to become available. They will be eligible for a visa as soon as the I-130 petition is approved.
Although CSPA protects your child from aging out after the I-130 petition has been submitted, it doesn’t protect them from no longer being a “child” in the eyes of USCIS.
This is why it’s so important to make sure your child doesn’t get married either. If they do get married, it will cause them to no longer be considered an immediate relative and would need to wait a long time for a visa to become available for them.
Converting Child’s Petition To Immediate Relative After Naturalization
I’ve written another post about how to convert your spouse visa after you naturalize, but you can also do this with a child’s petition.
If a lawful permanent resident parent files a petition for their child who is under 21 and unmarried they will likely need to wait for their priority date to become current.
However, if the LPR parent naturalizes then the child’s petition is automatically converted to an immediate relative petition and there is no longer a waiting period for a visa.
Calculating The CSPA Age Formula
To determine the age of the child on the date that a visa number becomes available, we subtract the number of days the petition was pending from the child’s age at the time of visa availability.
This is the child beneficiary’s CSPA age. So, if the child is under 21 using this formula, he or she may benefit from CSPA age-out protection.
For example: your child is 20 years old and your petition was pending for 1 year, this means that your child’s CSPA age is 19.
As you can see, the CSPA is a great form of protection for cases that will be pending for a significant amount of time. You no longer have to worry about your child’s age causing them to be placed in the back of the line after waiting years for their visa.
Elisa petitioned for her daughter back in May 1999 when she was a lawful permanent resident. The details of the case are below.
- DOB: February 3,1983
- LPRI-130 filed: May 12,1999
- Approved: January 6,2003
- Visa first available: August 2,2005
- I-485 filed: September 29,2006
Based on the information above, is the CSPA age under 21? Will her daughter be eligible to adjust status as a child?
Okay, now lets calculate Elisa’s daughter’s CSPA age to determine if she is protected for immigration purposes.
Age at time visa was available – 22y 5m 29d minus time I-130 is pending – 3y 7m 24d = CSPA age 18y 10m 5d
So, yes her daughter is within the age limit under CSPA and will qualify for the visa even though she is older than 21 when the visa became available.
To answer the question on whether her daughter can adjust status as a child, the answer is no. This is because she waited longer than one year to file adjustment of status.
CSPA and Visa Regression: What Is It?
When a person files for adjustment of status and the visa then regresses, they’ve locked in their “CSPA” age. USCIS will hold the I-485 until the visa becomes available again and then they will adjudicate it.
When a visa becomes available and the beneficiary fails to seek to acquire a green card within one year, and the visa regresses after that one year has lapsed, they are ineligible for CSPA age-out protection, since the regression did not affect their ability to meet the seek to acquire requirement.
Also, when a visa becomes available, but regresses before one year has lapsed, USCIS currently restarts the one year clock the next time it becomes available.
But, USCIS does the age calculation based on the new visa availability date, so it is in a child’s best interest to seek to acquire as soon as possible when it comes to CSPA age-out. The same thing can happen multiple times, as long as the visa was never available for a full year.
What Happens If Child Is Widowed or Divorced?
If a US citizen’s child get married, even if under age 21, they are not considered an “immediate relative.”
They will then need to wait for a visa to become available and use the preference category to qualify. However, if this same child gets divorced or is widowed before age 21, they can convert the visa petition to immediate relative by letting USCIS know of the termination of the marriage.
I know this stuff gets really complicated, but it’s important that you truly understand this!
Pablo’s son Hugo who is 18 years old recently got married. If Pablo decides to petition for his son now with form I-130, the visa petition will be placed in the F3 family-based preference category. He can expect a wait fo 10-20 years for a visa to become available!
However, if two years pass and Hugo gets a divorce and has an official divorce decree, you can take advantage of the “aging out” protections of the CSPA by letting USCIS know that Hugo is now considered an immediate relative. This is also the case if Hugo’s wife were to pass away.
Related Post: K2 Visa Processing Timeline
Related Post: CR2 Visa Processing Times
Conclusion: The Child Status Protection Act
As you can see, the child status protection act can be quite complicated and is time sensitive. The best thing you can do when it comes to petitioning for your child is to do so as quickly as possible!
Waiting can cost your child many years of waiting so as soon as you are able to submit the I-130, do it!
Another important thing to note is that if you are a LPR submitting the I-130 for your child, your petition will automatically covert the petition to an immediate relative. This is a huge benefit because it will speed up the visa process for your child!
Do you want to petition for your child at the same time as your spouse or fiancé abroad? Check out the Migrant Academy – an interactive step-by-step online course for the CR1 spouse visa and K1 fiancé visa. Learn exactly how to quickly get your child to the US by piggybacking on your spouse visa or fiancé visa petition. No need to hire an expensive attorney, you can submit your own petition and visa application and get one-on-one help and guidance.