Child Status Protection Act Lawyers

Protecting Child Status for Minors Who Age Out

A Remedy for Problems Caused by Extended Processing Times

U.S. citizens and lawful permanent residents may file a petition for alien relative (Form I-130) on behalf of a minor child or a relative in a preference category who has a derivative minor child in order to obtain an immigrant visa for the child (the beneficiary). Because of the backlog of visa applications, the child may have to wait months or years before the priority date on the visa becomes current. What happens if the applicant is over the age of 21 at the time when the visa can finally be used?

Before August 6, 2002, when the Child Status Protection Act took effect, a child who turned 21 while waiting for a visa could not be considered a child for immigration purposes — even though he or she was a child when the application was completed.

The Child Status Protection Act (CSPA) protects the child status of those who “age out” of the system because of excessive processing times. It recognizes that the petitioners did everything correctly at the time their petitions were filed. The CSPA allows beneficiaries to retain their classification as “children” even though they are age 21 or older at the time the visa can be used subject to the provisions of the CSPA.

Child status can be retained in cases involving family-based immigrants and employment-based immigrants. Some humanitarian programs for unmarried children of refugees and asylees also qualify for protection of child status.

If the child is an immediate relative of a naturalized U.S. Citizen, his or her age freezes at the time the visa petition is filed (Form I-130). If a child becomes an immediate relative through the petitioner’s naturalization or the termination of the beneficiary’s marriage while the beneficiary is under 21, the child’s age freezes on the date such action occurred. Through the preference classification for permanent residence or derivative, CSPA allows the time a visa petition was pending to be subtracted from an applicant for permanent residence’s biological age so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

To be eligible for CSPA age out protection:

• The child must have been the beneficiary (principal or derivative) of a pending or approved visa petition on or after August 2, 2002.
• The child must not have had a final decision on an application for adjustment of status or an immigrant visa before the date of enactment of the CSPA.
• The child must “seek to acquire” permanent residence within one year of a visa becoming available by 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 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 (if a visa was already available in that category).

The Child Status Protection Act is extremely complicated and the rules which determine the age of the former minor child under CSPA are such that only an experienced attorney can properly understand them and effectively advise you.

The Opt-Out Option

The Child Status Protection Act also offers an opportunity for beneficiaries in some limited circumstances to opt out of their preference category. For example, if a permanent lawful resident files a Form I-130 petition for the minor child, but later becomes a naturalized citizen, the child’s preference classification automatically changes from second to first. If the waiting period is shorter for those in the second preference category, beneficiaries are allowed to opt out of this automatic conversion. Opting out requires written notice to USCIS.

Many amendments to the Child Status Protection Act have addressed other specific circumstances and have made certain immigration regulations more reasonable. Our attorneys can determine if these amendments apply to your situation. To arrange a free consultation, please contact our Child Status Protection Act lawyers at your earliest convenience.

From offices in New York City, and Pittsburgh and Philadelphia, Pennsylvania, our Child Status Protection Act lawyers represent clients from throughout the U.S. and around the world.