A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 2 of 3

The CSPA protects family-based 2(A) preference children of Permanent Residents

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. The CSPA applies to children of Lawful Permanent Residents (“LPR”) if Form I-130 (Petition for Alien Relative) is filed on their behalf. To qualify under the CSPA, the child of the LPR must be “under age 21” as defined by the CSPA (and unmarried) at the moment that s/he obtains immigrant status. Specifically, if the Immigrant petition is filed by an LPR and the immigrant petition is approved and the priority date becomes current before the applicant’s “CSPA age” reaches 21, the child will not “age-out.” In order for CSPA coverage to continue, the child must apply for permanent residence within one-year of the date the priority date became current.

The calculation of the CSPA age involves two formulas. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

For instance, if you filed an I-130 petition on behalf of your child on July 22, 2005, when your child was 14 years old, and a citizen of India, you would have to review the State Department’s monthly Visa Bulletin to determine whether or not your priority date is current. Currently, there is a backlog for all family based preferences in all countries listed in the bulletin. Accordingly, applicants in the second preference (A) category who are citizens of India, currently have a wait of approximately five (5) years before a visa number will become available. The State Department is currently processing cases for applicants with a priority date of July 15, 2003. Therefore, by the time the visa number will be available, your child will be 19 years old. Then, you must subtract from that age, the result of a second formula.

Secondly, in utilizing this formula, you must determine the elapsed time between the date the petition was filed, and the date that the petition was approved.

Accordingly, the I-130 petition was filed on July 22, 2005, and then approved on July 27, 2007. The computation of those two dates would be a period of approximately 2 years. Therefore, the child’s CSPA age would be 17, and he/she may qualify for benefits under the CSPA. (19 years of age – 2 years = 17 CSPA age) However, the child must file for permanent residence within one year of the priority date being current, or they will not remain a child for purposes of the permanent residence application, and subsequently, they will be denied.