When Immigrant Children of U.S. Citizens Are Legally Protected Against Aging Out of Child Status
Congress enacted the Child Status Protection Act in 2002 to address the problem of foreign national children aging out of their “child” status due to long USCIS waiting periods. It is best known for providing benefits to children of green card holders and children who have derivative beneficiary status. However, the CSPA also provides protections to children of U.S. citizens, who will be coming to the U.S. on immediate relative petitions. Before you file this type of petition, though, you should check to make sure that your child does not have citizenship automatically. These rules change over time and depend on several factors, such as how long the parent has lived in the U.S.
Is My Child Already a Citizen?
Children may be citizens through birthright citizenship, or they may get citizenship through acquisition or derivation if at least one of their parents is or becomes a U.S. citizen.
A U.S. citizen can file an immediate relative petition for a spouse or an unmarried child who is under 21. They will not need to go through a long waiting period before coming to the U.S., since there is no cap on these types of green cards. If the child turned 21 before the approval of the petition, this formerly meant that they would lose their immediate relative status and face a much longer wait to come to the U.S.
Impact of the CSPA on Immediate Relative Petitions
Under the CSPA, a foreign national child of a U.S. citizen will retain their status as an immediate relative if USCIS receives the I-130 petition a day before the child turns 21. This law applies to all types of immediate relative petitions, including petitions that were filed before the CSPA was enacted. If USCIS did not make a final decision on the petition before August 6, 2002, the child who is the subject of the petition can apply for a green card at any time following its approval. They would need to file Form I-485 for adjustment of status if they already have legal status in the U.S. On the other hand, they would need to file Form I-824 and go through the consular processing system if they do not have legal status in the U.S. or are living abroad.
If the foreign national child gets married before receiving the green card, even if they are under 21, they will not be considered an immediate relative. The child will face a much longer wait time because they no longer meet the immigration definition of a “child.” The CSPA protects only the age of the child, rather than their marital status.
If you are a green card holder who plans to become a citizen, you may gain benefits if you can naturalize before your child turns 21 and before USCIS approves your Form I-130 petition. This would freeze your child’s age on the date that you get citizenship, and you could convert the immigrant visa petition for them to an immediate relative petition.
An applicant may opt out of the CSPA provision converting them to the first preference category when their parent naturalizes if they wish to take advantage of the fact that wait times in a different category would be shorter.
Widowed or Divorced Children of U.S. Citizens
In very rare situations, a foreign national child may get married and divorced before they turn 21, or their spouse may die before they turn 21. If this happens, they will be considered an unmarried child again, so you can improve their processing priority by converting their petition to an immediate relative petition. This can result in a much shorter wait time. However, you should be aware that any grandchild from the relationship cannot come to the U.S. as a derivative beneficiary of the immediate relative petition. Your child thus may be reluctant to convert the petition if they have a child.