When Foreign Nationals Are Legally Protected Against Aging Out of Child Status During Immigration Waiting Periods
CSPA Preserves the Status of Certain Child Beneficiaries Who Would "Age Out" Due to Administrative Delays in Visa Processing
The long waiting periods to bring a foreign national child to the U.S. often have resulted in the child turning 21 (or “aging out”) before they could complete the green card application process. This means that the child might no longer be able to come to the U.S., or they might face a much longer wait because they would fall into a lower priority category. To address this problem, Congress enacted the Child Status Protection Act in 2002. In many cases, this freezes the age of the child as their age when USCIS received the I-130 petition for them.
You may be able to get the benefits of the CSPA if you are a green card holder seeking to bring your child to the U.S., or if you are a U.S. citizen who is bringing a child to the U.S. as a derivative beneficiary of a petition for another foreign national. The CSPA offers somewhat different benefits for a U.S. citizen who is bringing their child to the U.S.
The CSPA and Children of Green Card Holders
The CSPA may freeze the age of a foreign national child of a green card holder as their I-130 age if the petition was pending or approved on or after August 6, 2002. They must not have received a final decision on their immigrant visa or adjustment of status application before August 6, 2002, and they must seek to acquire the green card within one year of the visa becoming available. This means that they would need to file Form I-824 if they are not in the U.S., which is known as an Application for Action on an Approved Application or Petition. They would need to file Form I-485 instead if they are in the U.S., which is known as an Application to Register Permanent Residence or Adjust Status.
If your child turns 21 before their priority date is current, you will need to check the Visa Bulletin on a monthly basis to see when their priority date becomes current. Once it becomes current, you can subtract the number of days that the I-130 was pending from your child’s age when their priority date became current. If the result is under 21, the CSPA applies to the child and prevents them from aging out of their “child” status.
The CSPA and Derivative Beneficiary Children
If you are trying to bring an adult family member to the U.S., you might include their children as derivatives. The CSPA prevents them from aging out if they meet the same rules discussed in the section above, although you will need to refer to different categories of preferences in the Visa Bulletin to find their priority date.
The CSPA protections also apply to foreign national children who are derivatives of work visa petitions using Form I-140. Work visas usually are processed more efficiently than family visas, so aging out is less likely in these situations. For foreign national children coming from certain countries, such as Mexico, China, or India, aging out still may be a risk. The priority date for these children will be the date that the labor certification was filed, if applicable, or otherwise, it will be the date that USCIS received the I-140 petition.
