In the ever-changing landscape of U.S. immigration, the Child Status Protection Act (CSPA) has had a profound impact on children seeking green cards. This legislation has significantly transformed the immigration journey for family-based preference relatives and derivative beneficiaries.
The Pre-CSPA Challenge
Before the CSPA was enacted in 2002, turning 21 was a significant hurdle for children with pending immigrant petitions. This milestone, known as “aging out,” often meant losing eligibility or being moved to a less favorable visa category. Long waits were common due to annual visa limits and lengthy green card processing times, especially for the unmarried children of U.S. permanent residents.
Post-CSPA: A New Age Calculation
The CSPA changed how a child’s eligibility is determined. Instead of relying solely on the child’s age when a visa becomes available, the CSPA considers the child’s age on the date USCIS received the visa application.
Who Benefits from the CSPA?
This article primarily addresses two groups who benefit from the CSPA:
U.S. Permanent Residents Sponsoring Children:
If you’re a permanent resident who has filed a family-based petition for your child using Form I-130, this information is for you.
U.S. Citizens with Pending I-130 Petitions:
If you’re a U.S. citizen with a pending I-130 petition for a family member whose child is included as a derivative beneficiary, this is relevant to you.
U.S. citizens can find specific guidance on bringing foreign-born children to the U.S. in the resource titled “How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens.”
How Permanent Residents Can Sponsor Children for Green Cards
Lawful permanent residents (LPRs) can file a “family-based” immigration petition for their children under 21 and their unmarried sons and daughters over 21 using Form I-130, Petition for Alien Relative. There is an important distinction between “children” (under 21) and “sons and daughters” (over 21), as they fall into different visa preference categories:
- F2A: Children of LPRs
- F2B: Unmarried sons and daughters of LPRs
The wait times differ significantly between these categories. F2A often has no wait, while F2B usually has a wait of at least five years. Thus, avoiding “aging out” and moving to the less favorable F2B category is crucial.
The Impact of the CSPA on Child I-130 Petitions
If a permanent resident didn’t include their minor children as derivative beneficiaries when obtaining their green cards, or if the children lost their green cards due to extended stays abroad, filing Form I-130 based on preference category F2A is the solution. Before the CSPA, turning 21 before a visa became available meant a shift to F2B and a long wait for a green card. The CSPA offers relief by protecting the child’s I-130 petition if the applicant seeks to acquire the green card within one year of visa availability by filing Form I-824 or Form I-485 if the child is in the U.S. legally.
Calculating CSPA Age
To determine a child’s eligibility under the CSPA, calculate the “CSPA age” using the priority date (when USCIS received Form I-130) and the child’s age. If the priority date becomes current before the child turns 21, the CSPA protects the child.
For example:
If a child was born on November 30, 1999, and the I-130 petition’s priority date is August 15, 2020, and a visa became available in August 2021, the child’s CSPA age would be about 20 years and 8 months, allowing them to apply for a green card.
The Impact of the CSPA on Derivative Beneficiaries
The CSPA protects child derivative beneficiaries of family-based and employment-based visa petitions, ensuring their inclusion in their parents’ applications even if they would have otherwise aged out.
The CSPA Allows Some Permanent Residents to “Opt Out”
The CSPA allows LPRs who have filed Form I-130 for their unmarried sons or daughters to “opt-out” of transferring their petition to F1 if they naturalize before a visa becomes available.
Seeking Legal Guidance
Navigating the CSPA and its applications can be challenging. If you face difficulties understanding your child’s rights under the CSPA or issues with USCIS recognition, seeking help from an experienced immigration attorney is advisable.
The Child Status Protection Act has greatly transformed family-based immigration, offering protection to children who would otherwise age out. By understanding its implications and following the guidelines, families can navigate the immigration process more effectively and avoid unnecessary delays. For personalized advice, consider consulting with an immigration attorney or a reputable immigration organization.
