Permanent Residence “Green Card” for children under age 21

U.S Citizens and legal permanent residents are eligible to petition for their minor children (unmarried sons or daughters under the age of 21) to become permanent residents. Immigrant petitions for immediate relatives i.e., minor children of U.S. citizens or residents are processed faster and children obtain an immigrant visa immediately in most cases.

The Issue –“Aging–Out”

Due to immigrant visa processing delays in the last few years, children with pending applications were often forced to forego this benefit when turning 21 years of age as they no longer qualified as a child (“aged out”) for their immigrant petition. As a result, individuals in this situation were often automatically moved to the family-based preference category which usually takes approximately four to six years currently for the visa to become available for unmarried children of U.S. citizens. This waiting time becomes even longer for unmarried children of U.S. permanent residents. Most of them have to wait for nine or more years for visas to become available.

The Solution – Child Status Protection Act (CSPA)

To address this issue, on Aug 6, 2002, President George W. Bush signed into law the Child Status Protection Act (CSPA). This law permits children who have applied for immigration benefits to retain their status as a “child” after they reached the age of 21 until their visa number becomes available.

The CSPA provides “age-out” protection to children of U.S citizens and legal permanent residents, to derivative beneficiaries (dependent children) of employment-based applicants, and family-based immigrant petition applicants, children of diversity visa applicants, and children of applicants seeking asylum or refugee status. CSPA does not protect nonimmigrant visa holders (K or V), or NACARA, or HRIFA, or Family Unity, or Cuban Adjustment Act, or Special Immigrant Juvenile applicants and/or derivatives not specified in the CSPA.

This law applies to a variety of situations: (1) Beneficiary of an immigrant visa application that was filed on or after August 6, 2002, (2) Cases where the  beneficiary's immigrant petition was filed prior to August 6, 2002, but still pending on that date, (3) Cases where the petition was approved prior to August 6, 2002, and where a final determination on either the visa application or adjustment of status petition has not been made, and had been initially denied solely due to age-out, may file a motion to reopen or reconsider (fee waived) if the applicant would have been considered under the age of 21 under CSPA, and the applicant applied for permanent residence within one (1) year of visa availability.

CSPA also covers beneficiaries who did not have an application for permanent residence pending on August 6, 2002, and did not later file for permanent residence within 1 year of the petition approval and visa availability, but who would have qualified for CSPA but for pre-CSPA rules. The law also covers beneficiaries who had an approved visa petition prior to August 6, 2002, but who did not have a pending application for permanent residence on that same date.

Interpretation of the Child Status Protection Act

Protection for children of U.S. Citizens

The CSPA requires the United States Citizenship and Immigration Services (USCIS) to use the age of the child beneficiary on the date of the filing of the immigrant visa petition (Form I-130), to determine whether the applicant can be viewed as an immediate relative child and subject to CSPA protection.

To illustrate the implications of CSPA, a few examples are provided below:

Example 1: If Form I-130 immigrant petition was filed for a child of a U.S. citizen when the child is under the age of 21, then the child is permanently classified as a 'child', as long as the child remains unmarried. If the petitioner parent, who is initially a U.S. permanent resident, naturalizes and becomes a U.S. citizen while the immigrant petition is still pending for the child, then the petition is converted from a second preference visa category into an immediate relative category. Then, USCIS would have to use the child's age on the date of the parent's naturalization to see whether the child remains eligible for immediate relative status.

Example 2: If a U.S. permanent resident parent files an immigrant petition for a 16 year old son, and then the parent naturalizes and becomes a U.S. citizen when the child reached 20 years of age, then the son will still remain eligible for a visa or adjustment of status as an immediate relative classification, even if the child reached 22 years of age on the date the immigrant visa or the adjustment of status is filed. In this case, the applicant should submit proof of the parent's naturalization.

Example 3: If the petitioner parent is filing for a 3rd visa preference (married children of U.S. citizen), USCIS would use the age of the child on the date of the termination of the child's marriage when filing for the visa. If the child is under 21 at the time of the termination of marriage, then the child's third preference petition would be converted into an immediate relative petition. However, if the alien is over 21 years of age on the marriage termination date, then the third preference petition would be converted into a first preference petition.

Example 4: If the 20 year old married son of a U.S. citizen petitioner gets divorced before reaching 21 years old, as long as the son remains unmarried, he will be treated as an immediate relative, even if he ends up filing for immigrant visa or adjustment of status well after 21 years of age.

Protection for Children of U.S. permanent residents (includes family-based second visa preference; derivative applicants in family-based and employment-based petitions)

In order to determine if a child qualifies under CSPA protection, USCIS must decide on the applicant's age as of the first date an immigrant visa becomes available for the alien (or for the alien's parent in derivative cases), minus the number of days that the petition was pending. Also, even if the child is allowed age-out protection, the alien must still file for permanent resident status within one (1) year of the visa being available.

Example 1: If a U.S. permanent resident parent filed an I-130 petition in 1998 for his or her child when the child was already 20 years old, and the visa became available 4 years later in 2003, and the I-130 was adjudicated four years later, the child's age for purposes of determining preference classification would be calculated by subtracting the age of the child on the date when the priority date became current (24 years) from the period the petition was pending with USCIS (4 years), thus the child's age would still be considered as 20 years old, and so the child would still be eligible for 2nd visa preference classification. However, it is important to note that the child must apply for permanent resident status within 1 year of the visa becoming available.

Example 2: If the same I-130 petition (in the above example) was adjudicated in year 2000, then the child's age would be calculated at 22 years old for CSPA purposes. Even though the child's age is 24 years old, his petition was only pending for 2 years, and so 24 years old minus 2 years of adjudication time would make the child's 'CSPA age' at 22, and the child would NOT be eligible for 2nd visa preference.

Additional Provisions of CSPA

A key provision of CSPA also allows that if the son or daughter of the petitioner is 21 years old at the time the visa number is available, regardless of the CSPA protection, the son or daughter's immigrant petition will be automatically converted to the petition in the relevant family preference category (it would be either a 2nd visa preference for adult son or daughter of U.S. permanent resident or a 1st visa preference for an unmarried son or daughter of U.S. citizen). The alien applicant also gets to keep the initial priority date with the initial immigrant petition.

Also, there is an automatic conversion for family-based 2nd visa preference filed by U.S. permanent resident on behalf of an unmarried son or daughter. CSPA says that their petitions will be automatically converted to a first visa preference when the parent naturalizes after the filing of immigrant petition and the beneficiary gets to retain the initial priority date. The son or daughter can actually decline this conversion (opting out) depending on whether the priority dates would be advantageous for one visa category or another as based on the son or daughter's country of origin. Some countries have visa backlogs that favor 2nd visa preference vs. 1st visa preference. Thus, such an opt-out provision exists for certain applicants. USCIS also subsequently clarified that the opt-out provision only applies to immigrant petitions that were initially filed for an unmarried son or daughter who qualified as 2nd visa preference category. So, for example, if the Form I-130 was filed by a U.S. permanent resident parent while the child was under 21 years old, then the child reaches 21 years old, and then the parent naturalizes, then the alien can neither use the automatic conversion nor the opting out provision of the CSPA. At the moment, there are no formal procedures to request for opt-out, but those regulations should be forthcoming.

Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.

 

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