Child Status Protection Act (CSPA)

The Child Status Protection Act (CSPA) defines qualifications of a child which allows certain beneficiaries to retain classification as a “child” even that person has reached the age of 21.

Age Out

A “child” is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants.

Qualifying for CSPA

Immediate Relative

  • If the petition (Form I-130, Petition for Alien Relative) was filed by a U.S. citizen parent for his or her child, the beneficiary’s age “freezes” on the date of filing.
  • If the petition (Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized.

Preference Classification for Permanent Residence or Derivative

  • CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

Eligibility

  • Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.
  • The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

Individuals may be eligible to apply for permanent residence under CSPA after 1 year of a visa becoming available if all of the following are true:

  • They are a beneficiary of a visa petition that was approved prior to August 6, 2002
  • They had not received a final decision on an application for permanent residence based or immigrant visa on that visa petition prior to August 6, 2002
  • The visa became available on or after August 7, 2001
  • They met all of the other eligibility requirements for CSPA (see above)

Opt-Out

CSPA provides another type of relief referred to as the “opt-out.” This is very limited in scope. If a permanent resident petitioner filed a Form I-130, Petition for Alien Relative, for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a 1st preference classification. The reason that this may be beneficial is that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. Requesting Opt-out must be done in writing to USCIS.