By Dev Banad Viswanath, Esq. & Michael Phulwani, Esq.
The Child Status Protection Act (CSPA), is the government’s reprieve to delays and backlogs that create a disruption of family unity by separating children over 21 years of age, who “aged out”, from their parents who received immigrant visas and siblings under 21. The CSPA amends the Immigration & Nationality Act (INA) by permitting certain aliens to retain classification as a “child” under the Act, even if he or she has reached the age of 21.
From the time CSPA was enacted until today, we have been continuously researching and reviewing the extent and nature of the implications, taking into account the Department of State (DOS) and US Citizenship & Immigration Services (USCIS) cables and memorandums as well as the decisions of the Board of Immigration Appeals (BIA) and decisions rendered by the federal courts. Below and in subsequent articles, we will provide you with an analysis of CSPA.
Does CSPA apply?
The first step is to make the determination as to whether CSPA applies as stated above.
If CSPA applies under the abovementioned guidelines, the next step would determine whether a child, who would have previously lost benefits due to aging-out, is able to receive benefits. The first part of the analysis is determining the date on which the child’s age is “frozen.”
Firstly, ascertain when immigrant visa numbers became available. The date that a visa number becomes available is the first day of the month that the Department of State (DOS) Visa Bulletin says that the priority date has been reached. If upon approval of the Form I-130 petition, a visa number is already available according to the DOS Visa Bulletin, the date that a visa number becomes available is the approval date of the Form I-130.
When the visa number becomes available, we can commence the exercise to freeze the child’s age by deducting the time taken by USCIS for approval of the visa petition from the age of the child when visa numbers became 1st available. The time deducted from the age of the child is the difference between the priority date and the date on which petition was approved. If under this formula, the child’s age is under 21, it will be frozen at that point. The child’s aging out after that “frozen” date will not affect eligibility to obtain immigration benefits.
With regard to the children under the preference categories, their age for CSPA purpose is calculated by taking the age of the child on the date the visa became available and subtracting the time taken by the USCIS to adjudicate the petition. For Immediate relative petitions, the age of the child “freezes” the moment the petition is filed.
The child’s age – determined by the first two steps described above – will remain frozen only if the beneficiary has sought to acquire the status of an alien admitted for permanent residence within one year of the visa availability. For a child beneficiary who is obtaining his visa at a U.S. Consulate abroad, this requirement will be satisfied by the submission of a completed Form DS-260 to the consular office where the visa application would be processed or the National Visa Center (NVC). In the cases in which the principal adjusted status in the U.S. and the derivative is applying for a visa abroad, the third step is satisfied by the filing of Form I-824 by the principal applicant. For a child beneficiary who is adjusting his/her status in the U.S., the filing of Form I-485 satisfies the third step. However, it is important that the third step has to be completed within one year of the visa availability. There have been other steps that have been accepted to satisfy this “sought to acquire within one year” rule.
Coming up next
In Part II of this article, we will discuss about seeking the old priority date (of the parent’s petition) for the children who aged out and did not qualify under CSPA. There have been positive and negative actions taken in this arena.
…to be continued