The Child Status Protection Act: How Does It Help An Aged-out Child To Get A Green Card?

The U.S. immigration law can be harsh. We all know that but the worst part of the

immigration law comes up when it separates a child from his or her parents. Just ask the parents whose family-based immigrant petition has been approved, but their child cannot come to the U.S. with them because that child has aged out, i.e. the child had turned 21 years old.

A recent survey shows that one in 10 families whose family-based immigrant petition has been approved has a child who has aged-out. What do the parents do in such a situation? Do they go to the U.S. anyway, leaving their child back in their home country? Or do they let go of their dream of living in the U.S. to remain with their child?

In practice, the parents may not have to make this decision. The Child Status Protection Act (CSPA) comes to the rescue in such situations.

Click here to understand how to calculate child's age under CSPA.

The Child Status Protection Act of 2002 was signed into law by President George W. Bush on August 6, 2002, and became effective on that date. CSPA was enacted to address a growing problem of minor children losing their eligibility for immigration benefits because they had aged-out or turned 21 years old because of processing delays by the U.S. Citizenship and Immigration Services (USCIS) or the Department of State (DOS). While the CSPA benefits many it was not intended to benefit an applicant who aged-out due to the unavailability of a visa number.

The CSPA changes how to determine whether a child has "aged out" (i.e., turned 21 years old before visa issuance or status adjustment) for the purpose of the issuance of visas and the adjustment of status of applicants in most immigrant categories.

The CSPA became effective as of August 6, 2002 and applies only if either:

1. The Immigrant Visa petition was approved on/after August 6, 2002, or

2. The applicant aged out on/after August 6, 2002 (taking any Patriot Act 45 day benefit into account), or

3. The applicant aged out before August 6, 2002 but applied for a visa before aging out and was refused under section 221(g).

NOTE: If the petition was approved before August 6, 2002 and the applicant aged out before that date and either did not apply for a visa before that date or applied and was refused on age-out grounds, the CSPA does not apply.

Because there are so many possibilities the eligibility of an applicant for benefits under the aging-out provisions of the CSPA may be determined only at the time a visa application is adjudicated by either a consular officer or a USCIS Adjudications Officer.

The following information is provided to assist individuals who think they may qualify under the aging-out provisions of CSPA and wish to pursue their immigrant visa application based on those aging-out provisions.

Applicability: The (CSPA) applies to the following immigrant visa categories:

1. Children of U.S. Citizens and Lawful Permanent Residents (LPRs) (IR-2 and F2A principal applicants)

2. Derivative children in all family- and employment-based preference categories (F1, F3, F4, and E categories).

NOTE: The CSPA does not apply to V, K, or any other nonimmigrant visas.

The mathematical formula to figure out if a child is eligible for CSPA is the Age of applicant when a visa number became available less Time the case was pending with the U.S. Citizenship Immigration Services.

Inapplicability of the CSPA:

Applicants who are in nonimmigrant visa status (e.g., K or V), or filing under the NACARA, HRIFA, Family Unity, or Special Immigrant Juvenile categories will not benefit from the provisions of the CSPA.

Conclusion:

The U.S. Congress passed the Child Status Protection Act (CSPA) to permit 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.

by: VisaPro.com

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