Child Status Protection Act: Delays Are Actually Better For Some

(This article was written in 2006 for ilw.com.)

The Child Status Protection Act (CSPA), Pub. L. 107-208 (Aug. 6, 2002), was enacted to allow certain "aged-out" children to lock in their age so that they are eligible to become legal residents despite delays in the processing of their visa petitions. However, for certain children of non-citizens, the only way that they may benefit from the provisions of CSPA is by virtue of an agency delay.

Before CSPA was passed, a child who was under 21 when her visa petition was filed would become ineligible for lawful permanent residency if, by the time the application for residency was finally adjudicated, the child had turned 21. Under the Immigration and Nationality Act (INA), an applicant is no longer considered as a "child" on the day she turns 21. INA § 101(b)(1). The CSPA was conceived and enacted to address this issue by allowing a child to apply for legal residence status even if they had turned 21, if their visa petitions were filed prior to the age of 21. The stated intent of CSPA was to counter processing delays of immigrant petitions.

The coverage of CSPA is quite broad, covering not only children of U.S. citizens, but also children of refugees and asylees, as well as direct and derivative beneficiaries of other family and employment-based visa categories. See, e.g., INA §§ 203(h)(2) and 208(b)(3). As far as the child of a U.S. citizen is concerned, her age will be locked in as of the date the underlying visa petition was properly filed with the government. For example, if the child is 20 when the visa petition is filed, she will continue to be considered 20 regardless when her visa application or adjustment application is adjudicated. Two other similar benefits are also conferred upon children of U.S. citizens under CSPA. [1]

While children of U.S. citizens enjoy relatively simple and direct benefits under CSPA, children of LPRs and other categories of applicants must first apply a mathematical formula to calculate their "age" for the purpose of CSPA to determine whether or not they are eligible for CSPA benefits. First of all, the child's age at the time a visa number becomes available is to be determined; then, reduce this age by the number of days that the underlying visa petition is pending with government; finally, the beneficiary child must seek LPR status within one year of the date of visa availability in order to lock in this age.[2]

Step one is to determine the child's age at the time a visa becomes available. According to the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS), the date of "visa availability" is the first day of the month in which the priority date becomes current, as published in the DOS Visa Bulletin. However, both the Legacy INS and DOS have also interpreted that, if the immigrant petition is approved after the priority date has become current, the date of approval is the date of "visa availability." [3]

Step two is to subtract the number of days that the visa petition has been pending from the age above. The agencies have uniformly decided that a petition is considered "pending" for CSPA purposes from the date it was filed until the date it is approved. [4] This interpretation has so far not been challenged.

The following two examples will illustrate the application of this formula:

• Child #1's Form I-130 visa petition was filed in June 2000 by her LPR parent when she was 20 ½. The priority date became current on 1 June 2001 and her I-130 was approved in June 2001. An adjustment application was filed a month later. Applying the formula, the child's age when a visa number becomes available was 21 ½. However, since the I-130 was pending for one year, her age was reduced by one year to 20 ½. Therefore, she would be eligible to apply for LPR status as a child.

• Child #2 has the exact same facts, except that her I-130 visa petition was adjudicated and approved earlier, in November 2000. Applying the formula again, Child#2 was still 21 ½ when there was a visa number available. However, since the I-130 was pending for only five months, her CSPA age would only be reduced by five months to 21 and one month, and she would not be eligible to apply for LPR status as a child.

Although one of the reasons for the enactment of the CSPA was to counter administrative and processing delays, the current interpretation of the statute has indirectly created an inherent unfairness in the application process among the children of LPR parents. In the examples above, Child#1 and #2 both shared the exact same attributes and exercised equal diligence to pursue their LPR status. But they were subject to different treatment under CSPA based on events completely outside of their control. In fact, they could be twins in the same family with the same date of birth but would end up immigrating to the U.S. years apart.

Given the large volume of visa petitions and asylum and refugee applications, and regional differences, it is not unusual for the same type of applications to be adjudicated on very different dates. For children of non-citizens, their path to U.S. residency under CSPA could depend on one single event: when their immigrant petition is adjudicated. Under the current interpretations of the CSPA, ironically, delays in adjudication will sometimes be beneficial to them.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

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Endnotes
¹ CSPA § 2 provides two more benefits for children of U.S. citizens. First, when a LPR parent who has filed a family 2A preference petition for his child becomes a citizen, then the age of the child will be locked in on the date of the parent's naturalization and, if the child is under 21 on that date, she will be classified as an immediate relative. Secondly, when a USC parent files a petition for a married son or daughter under the family 3rd preference category, and if the marriage is terminated during the pending of the petition, the child's age will locked in as of the date of termination of the marriage. If such a child is under 21, he or she will be classified as an immediate relative under CSPA.
² CSPA § 3, codified at §203(h) of the INA.
³ See The Child Status Protection Act - Memorandum No. 2, Johnny N. Williams (Legacy INS) (Feb. 14, 2003); DOS Cable on Child Status Protection Act (posted on AILA InfoNet at Doc. No. 02090940 (Sept. 9, 2002)).
⁴ Id.; See, also, Matter of Garcia (BIA Unpublished Decision, June 16, 2006); Matter of Kim (BIA Unpublished Decision, June 7, 2006).