CSPA

The Child Status Protection Act (CSPA)

The Child Status Protection Act, or CSPA, was amended by the Immigration and Nationality Act (INA) by altering who qualifies as a child for the purposes of immigrating to the US. As a result, there are certain beneficiaries who can retain the classification of a child even though they have reached 21 years of age. Prior to the CSPA, this was not possible.

A child is defined as someone who is unmarried and under the age of 21. The CSPA took effect on August 2, 2002. Prior to that date, there were many children who were aging out (losing the qualification of being a child) as a result of backlogs and long processing times. CSPA allows a beneficiary to retain their classification as a child if he or she ages out as a result of excessive processing times that are beyond the control of the intending immigrant. CSPA can protect the child status of family-based immigrants, employment-based immigrants, and many immigrants who enter as part of a humanitarian program (refugees, asylees, VAWA, etc.)

Qualifying for CSPA

If the Form I-130 was filed by a US Citizen parent for his or her child, then the child’s age is determined to be the age it was on the date of filing. For immigration purposes, the age “freezes” on the date the I-130 is filed.

If the Form I-130 was filed by a legal permanent resident parent for his or her child and the parent naturalizes before the child turns 21, then the child’s age is determined to be the age on the date on which the LPR parent naturalized.

If a petition is filed for a visa and USCIS does not adjudicate the visa right away, CSPA will allow for the time between the filing of the visa and the adjudication of the visa to be subtracted from the beneficiary’s age so as to not penalize the applicant for a delay by USCIS.

Qualifying for CSPA Eligibility

In order for the CSPA to apply to an intending immigrant, the following criteria must be met:

  • The visa petition must have been filed on or after August 6, 2002, the date the CSPA took effect.
  • The final decision on the application for adjustment of status or immigrant visa must not have been made before August 6, 2002.
  • The child beneficiary must seek to acquire permanent residence within one year of their visa becoming available. This means that the child has a Form I-824 or Form I-485 filed on his or her behalf or a DS-230 must be submitted. The one year period begins on the first day of the month in which the visa was listed as available in the Department of State’s visa bulletin or the date the visa was petition was approved (whichever date is later).
    • If the child:
      • Is the beneficiary of a visa that was approved prior to August 6, 2002, AND
      • Did not receive a final decision on an application for permanent residence or a visa prior to August 6, 2002, AND
      • Has a visa that became available after August 1, 2001, AND
      • Met all of the other criteria for CSPA, THEN
      • They may be eligible to apply for permanent residence under CSPA after the one year period.

Relief under the CSPA by Opting Out

If a permanent resident petitioner filed a Form I-130 for an unmarried son or daughter prior to the petitioner naturalizing, the beneficiary child can choose to stay in the second preference classification instead of converting to a 1st preference. This may be beneficial if the waiting time for the 2nd preference is shorter than for the 1st. In order to keep from automatically converting to the 1st preference classification, the beneficiary must make a request in writing to USCIS.

Protections under the CSPA for Refugees and Asylees

In order to benefit from the CSPA as a refugee or asylee child, you must have remained unmarried and aged out on or after August 6, 2002.

Derivatives

The age of the derivative child is determined by looking at the date when the Form I-589 or Form I-590 was filed by the parent. If, after August, 6, 2002, the child was unmarried and under the age of 21 at the time that either the I-589 or I-590 was filed and the beneficiary child in question was on the Form, the beneficiary will remain a child for the purposes of immigration regardless of age and can continue their immigration procedure based on that classification.

Form I-730, Refugee and Asylee Relative Petition and Section 209 Adjustment

For Forms I-730 or I-485 that were pending on or after August 6, 2002, the age of the child in question is based on the age of the child on the date the principal filed Form I-589 or I-590 as long as the other requirements that the child was unmarried and under the age of 21 are met. The child must remain unmarried.

Immigration Attorney Assistance with CSPA Requests

To learn more about the CSPA and how it might apply to your immigration or adoption situation, please contact immigration attorney direct line (949)228-3922 or email me at attorney@lawofficesofjackcsung.comto receive a free consultation with immigration attorney.  Office hours are Monday to Saturday from 9:00AM to 9:00PM, and email consultation is available 24 hours a day, 7 days a week.  Immigration law office located at 2975 Wilshire Blvd. Suite 352 in Los Angeles, California.  Free immigration consultation and advice within 24 hours guaranteed.

 

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