Articles Posted in Child Status Protection Act (“CSPA”)

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, August 3, 2012. Act now and submit your questions!

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, May 27th, 2011. Act now and submit your questions!

No matter what avenue you take towards permanent resident status (“green card”), whether it is family-based petition, employment-based petition, or diversity visa based, the priority date of your petition determines the order of visa availability for each particular category.

Priority Dates for Family-Based Petitions

For family based petitions, the priority date is established when the I-130 form (Petition for Alien Relative) is filed with the U.S. Citizenship and Immigration Services (USCIS). If an I-130 petition is denied because of ineligibility and then later resubmitted when eligible, the priority date is established at the time of resubmission of the petition. Matter of Carbajal, 20 I&N Dec. 461 (BIA 1992).

The CSPA protects Derivative children of Employment-Based preference categories

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.

Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. 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).

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).

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.