The Child Status Protection Act
On August 6, 2002, Congress passed the Child Status Protection Act ("CSPA"), Pub. Law. 107-208. The CSPA permits certain aliens to retain classification as a "child" under the INA, even if he or she has reached age 21. The CSPA applies to: (a) direct beneficiaries of family-based immigrant petitions, (b) derivative beneficiaries in family-based, employment-based, and DV categories.
The CSPA's provisions are not retroactive. The CSPA benefits only adjustment applications where the applicant aged out on or after August 6, 2002 (the "Enactment Date"). If an alien aged out prior to the Enactment Date, the petition must have been filed on or before the Enactment Date, and either:
In immediate relative cases, the age of the beneficiary on the date of filing the Form I-130 is used to determine whether the applicant qualifies as an immediate relative. For example, if on or after the Enactment Date a Form I-130 is filed for a child of a United States citizen when the child is under 21, the child will permanently qualify as a child as long as he/she does not marry.
In the case of a family-based second preference beneficiary whose parent/s naturalizes and whose petition is converted to immediate relative classification, the age on the date of naturalization will determine whether the applicant qualifies. For example, if a lawful permanent resident files a Form I-130 for a 17 year-old son and then naturalizes when the son is 20, the son will remain eligible for a visa as an IR-2, even if the son has attained the age of 22 on the date of visa application.
In the case of family-based third preference married children of United States citizens, their age on the date of termination of their marriage will determine whether the applicant qualifies. If the alien is under 21 at the time of the termination of his/her marriage, then his/her petition will convert to immediate relative. If the alien is 21 or older on the date his/her marriage is terminated, an family-based third preference will convert to family-based first preference status.
Preference and DV categories
Different rules apply in the case of family-based second-preference principal applicants, derivative applicants in all family-based and employment-based preference categories, and derivative beneficiaries in DV cases. These rules are described below.
The alien's age is determined by calculating his or her age as of the date a visa becomes available for the alien (or the alien's parent), minus the number of days that the petition was pending. However, only those aliens who seek to acquire the status of an alien lawfully admitted for permanent residence within one year of visa availability are eligible for relief under this section.
For the purposes of the above calculation, visa availability is defined to require both a current priority date and an approved petition. Age is determined on the date that the petition is approved if a visa number was already available in that category or, if a visa number was not available at that time, the first day of the month of the Department of State Visa Bulletin that indicates the availability of a visa number in that category. The number of days a petition has been pending is calculated from the date the petition was filed to the date the petition is adjudicated.
Because the DV process differs substantially from the preference process, treatment of DV derivatives is also different. For the purpose of calculating the period during which the "petition is pending", the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal applicant that his/her application has been selected (congratulatory letter) is used. That period will be subtracted from the derivative alien's age on the date the visa becomes available to the principal alien. The date the visa becomes available will be the first day on which the Department determines the principal alien's selection number becomes eligible for visa processing.
- Remained pending as of the Enactment Date; or
- Been approved before the Enactment Date with an adjustment of status application filed before the Enactment Date with no final determination made prior to the Enactment Date.