Child Stats Protection Act (CSPA) Allows Children Over 21 to Obtain Visas with Parents

Children Over 21 may immigrate with parents in Certain Categories under the New Child Status Protection Act (CSPA) Passed by Congress Compiled by Lal Varghese, Attorney at Law, Dallas
“The Child Status Protection Act” (CSPA) had been passed by the US Congress to address the problem of minor children losing their eligibility for certain immigration benefits as a result of USCIS or consular delays in processing the petition or application for immigrant visas. The CSPA protects the immediate relative child of a US citizen parent, children of permanent residents as well as children of asylum and refugee applicants. Prior to the enactment of CSPA, the child’s age was determined at the time of adjudicating the grant of permanent residence or the issuance of immigrant visa. The CSPA introduces earlier points of time when the child’s age is determined, after which it does not matter if the child crosses 21.

Children of US Citizens CSPA extends benefits to children of US citizens in the immediate relative (IR) category (minor children under 21 of US citizens) under three specific situations: 1. The child’s age will be determined on the date on which the immigrant petition for Alien Relative is filed, as opposed to when the application is adjudicated for permanent residence or the visa is issued by the consular officer.2. In the case of a child sponsored under the family-based second preference (2A) (unmarried minor children under 21 of permanent residents), which subsequently is converted to an immediate relative petition based upon the parent’s naturalization, the child’s eligibility for immediate relative status will be determined based upon the date of his or her parent’s naturalization. 3. If the US citizen parent filed a petition for a married son or daughter (under the third preference for married sons and daughters of US citizens) and such son or daughter later divorces, resulting in the original third preference petition later being converted to an immediate relative petition, the child’s eligibility for immediate relative status will be determined based upon his or her age on the date of the divorce. This provision would only be applicable in the case of a married son or daughter who divorces before the age of 21.

Children of Permanent Residents CSPA also extends “age-out” protection to the children of lawful permanent residents. This includes children who have been directly sponsored by their parents or who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants. The age of the alien child is determined on the date on which an immigrant visa number becomes available, reduced by the number of days the petition was “pending.” This provision triggers only if the alien child has sought to acquire permanent residence within one year of such availability. For instance, if the alien child is 22 years old on the date the visa number becomes available, but the immigrant petition was pending for 4 years for approval by the USCIS, the alien child’s age is reduced by 4 years, and thus the child is only 18 years old, and would be considered to be under the age of 21 years at the time of visa number availability. CSPA also provides that if the alien is determined to be 21 years of age or older at the time the visa number becomes available, notwithstanding the age-out protection extended under this section, his or her petition will automatically be converted to the appropriate category, which is typically the family second preference (2B) category for sons or daughters of permanent residents. The son or daughter will retain the priority date associated with the original petition.
Children of Asylum and Refugee Applicants CSPA also extends age-out protection to the children of asylum applicants, to provide that an unmarried alien who seeks to accompany or follow to join a parent granted asylum, and who was under 21 years of age on the date the parent applied for asylum but turned 21 during the pendency of the application, will continue to be classified as a child for purposes of derivative asylum benefits. CSPA extends this same protection to the children of aliens granted refugee status.

Petitions for Sons and Daughters of Naturalized Citizens CSPA provides that the family-sponsored (2B) petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a first preference petition for an unmarried son or daughter of a US citizen, unless the son or daughter elect otherwise. Regardless of whether the petition is converted, the son or daughter may retain the priority date on the original petition. A son or daughter would want to make such an election if the family first preference (adult sons and daughters of US citizens) for his or her country is more backlogged than the 2B preference.

Effectiveness of Petitions/Applications CSPA provides that nothing in the new law may be construed to limit or deny benefits provided for battered immigrant children. The new law also provides that the age-out relief extended under the legislation took effect upon enactment and applies to: (1) immigrant petitions that have been approved but where no determination has yet been made on the beneficiary’s application for an immigrant visa or adjustment of status; (2) immigrant petitions pending before or after the enactment date; and (3) applications pending before the Department of Justice or Department of State on or after the enactment date.
The children who turned 21, and moved from the immediate relative to the first preference category, may now be able to apply for permanent residence as if they are still under 21. Similarly, an individual in the 2B category can determine if he or she was below 21 at the time the visa became available under 2A, and the child could apply for permanent residence as if her or she is still under 21. But in the case of a derivative child who turned 21 when the parent become a legal permanent resident, CSPA may not provide much help since the petition is not pending and had been adjudicated already. But if the parent is yet to apply for permanent residence or immigrant visa, the 21 and above old child would be able to get permanent residency when the parent obtains it, as if he/she is under 21, and thus seeking derivative status.