The Child Status Protection Act (CSPA) was passed in 2002 to protect children from aging out of lawful permanent residence status before their application is reviewed. The Immigration and Nationality Act defines a child as an individual who is under 21 years of age and is unmarried, and while the CSPA does not change this definition, it creates new CSPA ages. Between the time an individual files a petition for lawful permanent residence (LPR) and his/her petition is reviewed, he/she may become older than 21. While this would otherwise make immigrants ineligible for certain visas and benefits, CSPA freezes an individual’s age at a certain time frame to prevent him/her from aging out of LPR benefits.
The CSPA applies to certain categories of individuals including:
- Immediate relatives of United States Citizens and Violence Against Women Act (VAWA) self-petitioners and derivatives;
- Family sponsored preference principal and derivative applicants, employment-based preference derivative applicants, and diversity immigrant visa applicants;
- Derivative refugees and Derivative Asylees.
Derivative applicants are minor children or spouses of the principal visa applicants who are the direct beneficiaries of a family or employment-based visa process.
The different categories of applicants have different requirements and different CSPA ages:
Immediate Relatives, VAWA self-petitioning spouse or child, and Derivate Children of VAWA self-petitioning spouses or children
Applicability
Immediate relatives of US Citizens qualify for the CSPA if they have had a Form I-130, Form I-360, or I-485 pending or approved on or after the date CSPA became effective, if the applicant was under the age of 21 and unmarried at the time they filed the forms, and if the applicant remains unmarried at the time of approval.
Age
Individual’s ages are frozen on the date they filed their Form I-360 or I-130. If an applicant is under 21 when they file a petition, they will not age out of CSPA. They must remain unmarried to keep their qualifications.
Derivate Refugees and Asylees
Applicability
If an applicant has a qualifying form I-590 or I-730 pending on or after the effective date of the CSPA and is under 21 and unmarried when he/she filed the petition, they may qualify for the CSPA.
Age
An applicant’s CSPA age frozen at their actual age on the date of their refugee parent’s interview with the USCIS. If they were under 21 at this date, they will not age out, but they must remain unmarried to qualify.
Family Preference, Employment-Based Preference, and Diversity Immigrants
Applicability
An applicant must have a qualifying petition pending on or after the effective CSPA date, must have a CSPA age under 21, must be unmarried, and must have sought lawful permanent residence within 1 year of visa availability. The “sought to acquire” requirement may be excused under extraordinary circumstances.
Age
CSPA age is calculated by subtracting the time the petition is pending from the age at the time of visa availability. The length of time a petition is pending is the approval date of the petition minus the filing date of the petition. For family and employment-based preference visas, the age at visa availability is the date the petition is approved or the first date of the month when the USCIS considers the visa available for accepting an adjustment of status application, whichever date is later. For diversity immigrant visas, the time of visa availability is the first day where the applicant’s rank number is current for processing.
* In a policy update from February 14, 2023, USCIS issued guidance that a visa is available to calculate CSPA age at the same time it is considered available to accept and process the adjustment of status application. This policy change can now qualify as an “extraordinary circumstance” that in some cases, may be used as an excuse for the requirement to seek lawful permanent residence within one year of visa availability.
Confusion Under the Two-Chart System
Between 2002 and 2015, the date on which an immigrant visa is available for the CSPA age calculation and for submitting an adjustment of status application to USCIS is the same as tied to the chart published in the U.S. Department of State (DOS) Visa Bulletin now known as the Final Action Dates chart.
In October 2015, DOS began publishing two charts in the DOS Visa Bulletin. The two charts consist of a “Dates for Filing” chart (which notifies beneficiaries when they may assemble and submit required documents to the DOS National Visa Center (NVC)) and a “Final Action Dates” chart (which informs when a visa is authorized for issuance). Since DOS implemented this change in 2015, USCIS designates one of the two charts, Dates for Filing or Final Action Dates, in the DOS Visa Bulletin each month for noncitizens to use in determining when to file an adjustment of status application. Problems arose under the two-chart system in the context of CSPA age calculations since a child’s adjusted age continued to be calculated based on the Final Action Dates chart, and not the Dates for Filing chart. For years CSPA applicants who filed their adjustment of status applications based on the Dates for Filing chart would have to pay the fee and file their applications without knowing whether the CSPA would benefit them.
Policy Guidance
USCIS Policy guidance from Feb 14, 2023, clarifies that the date a visa is available for CSPA age is the same date as the USCIS considers a visa available for accepting and processing the adjustment of status application, per the second DOS Dates for Filing chart. The guidance also clarifies that the 1-year period requirement for seeking to acquire LPR status starts when the visa becomes available. If an applicant does not seek LPR status within the year, the USCIS can account for extraordinary circumstances.
K-2 and K-4 Nonimmigrants
K-2 nonimmigrant applicants whose stepparents have filed a Form I-130 may allow individuals to get CSPA. The marriage between the US Citizen stepparent and nonimmigrant parent must have occurred before an applicant’s 18th birthday. If an applicant meets this requirement, his/her age is frozen on the date the stepparent files the I-130.
For K-4 nonimmigrants to qualify, the marriage between the US Citizen stepparent and nonimmigrant parent must have occurred before an applicant’s 18th birthday. If an applicant meets this requirement, his/her age is frozen on the date the stepparent files the I-130.
For more information and a table of different categories, see https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7.