What to do when your child is “Aging Out”: Understanding the Child Status Protection Act

What to do when your child is “Aging Out”:  Understanding the Child Status Protection Act

The Child Status Protection Act (CSPA) was enacted in order to protect individuals applying for permanent residence based on their status as “children” from being denied those benefits because of backlogs in USCIS processing times.  Becoming ineligible for permanent residence on this basis is referred to as “aging out.”  The CSPA allows these individuals to keep their classification as “children,” even after they reach the age of 21, for purposes of receiving an immigrant visa to enter the U.S. or adjusting status to a lawful permanent resident from within the U.S.

If you are a U.S. citizen or lawful permanent resident who files a Petition for Alien Relative on Form I-130 for your child who is under age 21, your child can continue to benefit from this petition even if USCIS does not make a final determination on the petition until after your child is over the age 21.  The CSPA applies to petitions filed for children under the  immediate relative category, petitions filed for children under a family-based preference category, and family-based and employment-based petitions in which a child is applying for an immigrant visa or adjustment of status as a “derivative applicant.”

Immediate Relative Petitions

The Child Status Protection Act applies to all immediate relative petitions, even if they were filed before the Act became law in 2002.  It also applies to petitions initially filed as family-based preference petitions, but later converted to immediate relative petitions.

For immediate relative petitions, the CSPA provides that the child must be under age 21 when the petition is filed.  The child then qualifies for an immigrant visa or adjustment of status even if the petition is not adjudicated until after the child is 21 or older.  The child has unlimited time to apply for an immigrant visa or adjustment of status provided that he or she has not received a determination on such an application prior to August 6, 2002.

If you are a lawful permanent resident filing a petition for your child, and you become a U.S. citizen while the petition is pending, your petition can be converted to an immediate relative petition.  Your child must be under age 21 at the time of your naturalization in order to be protected by the CSPA as an immediate relative in this scenario.

If you file a family-based preference petition for your married son or daughter who is under age 21, and this son or daughter later divorces, your petition can be converted to an immediate relative petition.  Your child must be under age 21 at the time the marriage is terminated in order to be protected by the CSPA as an immediate relative.

Family-Based Preference Petitions

Determining whether your child can take advantage of the CSPA as the beneficiary of a family-based preference petition is a bit more complicated than the process described above for immediate relatives.  You will need to know the priority date of the immigrant petition and when this priority date became current.

The “priority date” of a family-based immigrant petition is the date that the petition was received by USCIS.  Family-based immigrant petitions are filed using Form I-130.  When you filed Form I-130, you should have received a Receipt Notice from the USCIS, acknowledging that your petition was received and accepted for processing.  The Receipt Date on this notice is the petition’s priority date.

You can determine if your child’s priority date is current by checking the Visa Bulletin issued each month by the Department of State.  Immigrant petitions are processed based on the order in which they are received.  However, an immigrant’s ability to move on to the next step (applying for an immigrant visa at a U.S. consulate or applying for adjustment of status from within the U.S.) is limited by the availability of immigrant visas in the various preference categories.  Your child can apply for an immigrant visa or adjustment of status only when his or her priority date is “current,” meaning that there is an immigrant visa available.  The Visa Bulletin lists which priority dates are “current.”  It is updated monthly and published on the Department of State’s website.

If your immigrant petition is approved and the priority date becomes current prior to your child’s 21st birthday, your child has one year to apply for permanent residence in order for protection under the Child Status Protection Act to continue.

If you file an immigrant petition and your child reaches age 21 before the petition is approved or before his or her priority date is current, the calculation becomes more complicated.

First, you will need to determine your child’s age on the date an immigrant visa became available.  If there is no backlog and immigrant visas are immediately available, this date will be the date that the immigrant petition is approved.  If there is a backlog, immigrant visas are considered to be available on the first day of the month for which they are current.  For example, if your child’s priority date became current in the February visa bulletin, this date would be February 1.  Determine your child’s age on the appropriate date.

Second, subtract the number of days that the petition was pending from your child’s age.  This will determine your child’s age under the CSPA.  If this age is under 21, your child will be protected from “aging out.”  The number of days that the petition was pending is the number of days between the date the petition is received for processing and the date that an approval is issued.  Your child must apply for permanent residency within one year after the immigrant visa becomes available.

Derivative Beneficiaries (Family-Based and Employment-Based)

If your child is listed as a derivative beneficiary on a family-based or employment-based immigrant petition, the calculation is slightly different.

First, determine your child’s age on the date an immigrant visa became available.  Remember that for family-based cases, the priority date is the date the immigrant petition was received and accepted for processing.  For employment-based cases, the priority date is the date that the labor certification was filed, or if no labor certification was required, the date that the Immigrant Petition for Alien Worker (filed on Form I-140) was filed.

Second, subtract the number of days that the petition was pending from your child’s age.  For family-based cases, this is the number of days between the date that Form I-130, Petition for Alien Relative, was received for processing and the date that an approval was issued.  For employment-based cases, this is the number of days between the date that Form I-140, Immigrant Petition for Alien Worker, was received for processing and the date that an approval was issued.  This is your child’s age under the CSPA.

If the immigrant petition is approved and the priority date becomes current before your child is 21 under the CSPA, your child has one year to apply for permanent residency.

The Child Status Protection Act also has provisions protecting children who qualify for permanent residency based on the diversity visa lottery as well as K-2 and K-4 visa holders.  If you are concerned that your child may fail to qualify for permanent residency as a “child” because he or she is close to turning 21, you should consider whether your child’s eligibility can be preserved by the Child Status Protection Act.

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