The Child Status Protection Act (CSPA)
The Child Status Protection Act brings long over due relief to children that are excluded from immigrating with their families due to age.
The Child Status Protection Act, often called CSPA, became effective on August 6, 2002 and benefits those children that become 21 year old adults after August 6, 2002. It may also benefit a child that ages out prior to August 6, 2002 where a petition is pending on August 6, 2002 or the petition was approved and an adjustment application was filed on or before August 6, 2002 where no final determination has been made prior to August 6, 2002.
United States immigration laws treat children differently than sons and daughters. Children are defined as being under 21 years of age and unmarried. Son and daughters are either married or are over 21 years of age. Prior to passage of CSPA upon reaching age 21 the child becomes either a son or a daughter and is said to have "aged out" of the immigration benefits of a child. Under CSPA an immediate relative child, a child petitioned for by a U.S. citizen parent, has his age "frozen" for petition purposes as of the date of the properly filed parent's petition. Where the petitioning parent is a Lawful Permanent Resident who becomes a citizen during the process the age of the child is "frozen" as of the date of the parent's naturalization.
If the beneficiary is married and gets a divorce prior to age 21 the age, for this purpose, is "frozen" as of the date of the divorce.
In all cases the marriage or remarriage of the beneficiary ends their status as a "child."
Direct beneficiaries of family based preference petitions are beneficiaries for whom the petition was filed. They are often referred to as the principal beneficiary as contrasted with derivative beneficiaries. Family based preference petitions are those petitions for children other than an immediate relative, typically the family based 2A classification for children of a lawful permanent resident. The age of this beneficiary is not set by the date of the filing of the petition but upon the date that a visa number becomes available for the beneficiary less the number of days the petition was pending. Adjustment of status to a lawful admitted immigrant or an immigrant visa must be applied for within one year of the visa's availability.
Derivative beneficiaries are those children of preference family or employment based immigration visas. Examples are the children that are accompanying or following to join their immigrating or adjusting parents. The rules for determining the age of these children is the same as for family based preference petitions. The age of this derivative beneficiary is not set by the date of the filing of the petition as is the case for "immediate relative" but upon the date that a visa number becomes available for the beneficiary less the number of days the petition was pending. Adjustment of Status or immigrant visas must be applied for within one year of the visa's availability.
The term "adjustment of status" refers to changing a person's immigration status while in the United States. "Immigration" refers to completing the process at a consulate prior to entry into the United States from abroad.
The "Immediate relatives of U.S. citizens" or often simply "immediate relatives" are the immigration or adjustment of status of persons based upon the relationships of parent, spouse or child of a U.S. Citizen. Immediate relative do not include immigration benefits for the "derivative" spouses and children. Under the preference system spouses and children are given benefits to accompany the principal applicant or to follow to join.
The preference system is a complex system of numerical limitations for the immigration of persons to the United States. The numeric system preference system is always over subscribed and a waiting list is published by the United States Department of States monthly on their web site at http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html where there are also short definitions of the preference system.
When the son or daughter of the lawful permanent resident has a petition as a Family Based 2B pending and the petitioning parent naturalizes there is an automatic conversion to Family Based 1st preference. Any beneficiary having a petition at the United States Citizenship or Immigration Services (USCIS) or an American consulate may now request (in writing) that the conversion not occur.
Where there is a fear of the impending "aging out" for a child that does not qualify for CSPA there has usually been a procedure to expedite the adjudication.
CSPA does not apply to nonimmigrant visa applicants, NACARA/HRIFA applicants, Amerasians, Family Unity applicants and Special Immigrant Juveniles.
This is not intended to be a legal opinion nor does it take the place of competent legal representation by a licensed attorney fully aware of the individual nature and elements of each situation.