CHILD STATUS PROTECTION ACT

Protecting Children from "Aging Out"

The Immigration and Nationality Act defines a "child" as someone who is unmarried and under the age of twenty-one. There are several immigration benefits that are only available to children, or are available to children on more favorable terms than to adults, based on the immigration status of the child's parent. For example, a US Citizen or Legal Permanent Resident parent can petition for his or her sons and daughters to become permanent residents. If the sons and daughters are "children" of U.S. citizens, an immigrant visa number is immediately available to them, whereas there is currently a backlog of at least four years in visa availability for the unmarried sons and daughters of U.S. Citizens. Similarly, there is a three-year backlog on visa availability for the "children" of permanent residents while there is a nine-year backlog on visa availability for the unmarried sons and daughters of permanent residents.

Prior to the passage of the Child Status Protection Act in 2002, a child could only benefit from his "child" status if he remained a child right up until the date that he obtained an immigrant visa to come to the U.S. There were many expedite provisions available for children who were close to "aging out" and losing child status. However, in many cases children "aged out" due to processing delays on the part of INS and the Department of State. The Child Status Protection Act was passed to remedy this problem.

The Child Status Protection Act (PL 107-208), or CSPA, was enacted and became effective on August 6, 2002. It provides age-out protection for "children" who would otherwise lose immigration benefits, often due to processing delays, upon turning twenty-one. The CSPA provides age-out protection to immediate relative children; to derivative beneficiaries of employment-based and diversity visa applicants; and to the child beneficiaries of I-130 petitions filed by a legal permanent resident parent.

Protection for Immediate Relative Children

First, the CSPA protects "immediate relative" "children" from aging out. Immediate relatives are defined in Section 201(b)(2)(A)(i) of the Immigration and Nationality Act as "the children, spouses, and parents of a citizen of the United States." An unlimited number of visas can be issued to immediate relatives, so there is no backlog of visa availability. A visa number is always immediately available to immediate relatives. Children of immediate relatives can thus obtain permanent residence very quickly in most cases. However, if the child of a U.S. citizen turns twenty-one, he/she loses "immediate relative" status and can only qualify for a green card if the U.S. citizen parent files an I-130 petition. The son or daughter must then wait for a family-based first preference visa number to become available to him. Currently it will take approximately four years for a visa number to become available. If the son or daughter should happen to get married during those years, he will fall to an even lower preference category: family based third preference, for which there is now approximately a seven year wait on visa availability

The CSPA addresses this problem by stating that the age of an immediate relative child is frozen as of the date the parent filed the I-130 petition on his behalf. This is the child's "CSPA age" and never changes for immigration purposes once it is locked in. This keeps children from getting bumped to lower and lower preference categories due to USCIS processing delays. Similarly, if a child is the beneficiary of an I-130 petition filed by his or her permanent resident parent, and the parent later naturalizes and becomes a U.S. citizen, the child's preference category will be "upgraded" to an "immediate relative" petition for which a visa number is immediately available. In that case, the age of the child is frozen at whatever it was on the date the parent's naturalization date. Again, this "CSPA age" never changes once it is locked in. Finally, if a the son or daughter was originally married and is the beneficiary of a family-based third preference I-130 petition filed by his or her U.S. citizen parent, and the child later divorces, the child's I-130 is upgraded to an "immediate relative" petition if he is under age twenty-one, or to a family-based first preference petition, if he is over age twenty-one. In such a case, the determination of whether the beneficiary is a "child" or not depends on his age on the date his marriage was legally terminated.

Protection for Derivative Beneficiaries of Employment Based or Diversity Visa Lottery Applicants

Second, the CSPA protects family-based 2(A) preference children of permanent residents, and derivative children of employment-based and diversity visa lottery applicants for permanent residency from aging out. Under the 2(A) preference category children (under age twenty-one) are eligible for green cards as the direct beneficiaries of an I-130 petition filed by a permanent resident parent. Once they turn twenty-one those children are bumped down to the 2(B) preference category. (If they get married, they lose all eligibility to receive a green card based on a relationship to a U.S. permanent resident parent. Only after that parent naturalizes will that son or daughter again become eligible to be the beneficiary of an I-130 petition filed by the parent). The CSPA protects such "child" beneficiaries from aging out of the 2(A) preference category

The spouse and children of the beneficiary of employment-based, diversity visa, and all family-based petitions (except for immediate relatives) are eligible for an immigrant visa as a "derivative beneficiary". As a derivative, the child of an I-140 and certain I-130 petitions is eligible for an immigrant visa number at the same time and under the same preference category as his or her parent. Prior to the CSPA, if a child turned twenty-one prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would "age out" and lose eligibility for a green card based on his parent's application. An aged-out derivative child would then either have to leave the U.S., or must have been in a nonimmigrant status independent of his parents in order to remain here. (If he was in a derivative status based on his parent's status, he would also lose that status upon turning twenty-one). The parent could then only help him immigrate to the United States by filing an I-130 petition on the child's behalf. It could be several years before such a child could reunite with his parents.

The Child Status Protection Act addresses the problem of family-based 2(A) children aging out, and of derivative child beneficiaries aging out, through a complex formula that freezes the child's age at a certain point. This point is the "CSPA age" and never changes once it is locked in. The CSPA formula for locking in the age of a family based 2(A) beneficiary or the derivative beneficiary of an I-140 employment-based petition is :

1.) The age of the child on the date that an immigrant visa number becomes available for such alien (or in the case of a derivative beneficiary, for the alien's parent);

2.) Minus the number of days the relevant I-130 or I-140 petition was pending;

3.) But only if the alien has "sought to acquire" permanent residence within one year of visa availability.

Note that an immigrant visa number "becomes available" on the first day after an I-130 or I-140 petition has been approved, that an visa number is available in the alien's preference category. Remember, if the alien is a derivative beneficiary of a parent's I-140 petition, then he or she draws a visa number from the same preference category as the parent. For example, Michael Smith is the beneficiary of an employment-based third preference I-140 petition that was filed on March 1, 2005. His son Jozef was born on January 1, 1985 and will turn twenty-one on January 1, 2006. The I-140 petition is approved on December 27, 2005. Because his father is in the employment-based third preference category, a visa number is not currently available to either Michael or Jozef. According to the January 2006 Visa Bulletin, world wide EB-3 numbers are backed up to April 1, 2001. We can thus estimate that a visa will not "become available" to Jozef for approximately four years, and possibly longer. Assuming a visa becomes available to Michael and Jozef in December 2010, Jozef will be twenty-five years old. His "CSPA age" will be his age on the date the visa number becomes available, or 25, minus the number of days the I-140 petition was pending, or 301 days. This still only brings Jozef's age down to 24. He has "aged out" even with the help of the CSPA.

Retrogession of employment-based visa numbers has severely limited the ability of CSPA to help the derivative beneficiaries of employment-based petitions. In the I-130 context, USCIS has said that it will hold I-130 petitions and not adjudicate them until a visa number is available. This means that I-130 petitions can pend for 3, 4, 10 years. This long pendancy helps the child beneficiary of an I-130 petition to be covered by CSPA, because it greatly increases the number of days that can be subtracted from the age of a child on the date when a visa number becomes available, in order to arrive at the CSPA age. See our article on CSPA and Retrogression.

Take note that CSPA only applies I-130 2(A) beneficiaries and to the derivative beneficiaries of I-140 employment-based petitions if they "seek to acquire" permanent residence within one year of visa availability. The Department of State has stated that a beneficiary seeks to acquire LPR status either by filing form DS-230 with a consulate, or by filing an adjustment of status application with USCIS. For those derivative beneficiaries who are outside the U.S. and whose parent has already adjusted status in the U.S., the parent's filing of an I-824 to notify the consulate of the child's eligibility for an immigrant visa indicates the child has "sought to acquire" permanent resident status.

One situation the CSPA drafters did not contemplate in drafting this provision is that a visa can become available to an alien, and then quickly become unavailable. For instance, a visa number could have become available to the derivative beneficiary of an employment based third preference I-140 petition in February 2005. It would have very quickly become unavailable when visa numbers retrogressed, and the child would have had no forewarning and very little time to "seek to acqiure" permanent resident status. Not only that, if visa numbers remained backed up for the next year, she would be totally incapable of "seeking to acquire" permanent resident status during that one-year window. It is unclear how the Department of State would treat the issuance of an immigrant visa number to a child caught in that situation.

Who the CSPA Does Not Protect

The CSPA does not protect anyone unless the petition for the alien's (or in the case of a derivative benefiicary, the alien's parent) was approved on or after August 6, 2002, the effective date of the Act. According to the Department of State ALDAC #2, the CSPA may also apply to certain cases involving petitions approved before August 6, 2002, but only if:

a.) The alien aged out on or after August 6, 2002, or

b.) The alien aged out before that date but had applied for the visa before aging out and was refused under 221(g) [for insufficient proof of elibility for an immigrant visa]

The CSPA also does not protect nonimmigrant children from aging out and losing their nonimmigrant status. Children are only eligible to obtain dependent nonimmigrant status based on a parent's status until they reach age 21. Upon turning twenty-one, the child is no longer eligible for dependent nonimmigrant status and is considered "out of status." These children must either leave the U.S. before turning twenty-one, or must apply for a change of status prior to their twenty-first birthday. Note that in order to be able to change status, the child must not only file the change of status application before turning twenty-one, but must also be eligible for the new status prior to turning twenty-one. This can be a problem where a child is in a dependent nonimmigrant status such as L-2 or H-4 and files a change of status to F-1 student status. Most schools do not begin classes until late August, and students are not eligible for F-1 status until thirty days prior to the start of classes. Therefore, if the child turns twenty-one before he can enter F-1 status, there will be a gap in his status and the change of status application must be denied.

Finally, the CSPA does little to protect children from aging out if a visa number is unavailable due to retrogression

Conclusion

The Child Status Protection Act offers several protections to children who would otherwise "age out," and not all are mentioned in this article. The analysis of whether CSPA applies to a child's case often involves a very complicated analysis and legal advice should be sought to assist in such a determination.