A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 1 of 3

The CSPA as it relates to U.S. citizens filing petitions on behalf of their children.

The CSPA was designed to benefit children who would “age-out” because of processing delays on the part of the U.S. Citizenship and Immigration Services (USCIS) or Department of State. In enacting the CSPA, Congress had the intent to ensure that a child did not lose an immigration benefit merely because the child turned 21 while the government was processing the child’s immigration documentation. Prior guidance issued by the USCIS on August 17, 2004 and June 14, 2006 had limited eligibility of individuals to the CSPA if certain qualifying events occurred prior to August 6, 2002. However, new guidelines recently published by the USCIS remove those limitations.

The CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State, and for purposes of adjustment of status of aliens by USCIS. The Immigration and Nationality Act defines a “child” as someone who is unmarried and under the age of twenty-one. Prior to the passage of the CSPA on August 6, 2002, a child could only benefit from his “child” status if he/she remained a child right up until the date that he obtained an immigrant visa to come to the U.S.

The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence on the date of enactment to benefit from the CSPA. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. The child will not ‘age out.’ The child will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to August 6, 2002 on an application for permanent residence in which the applicant claimed to be a child.