1. What is the Child Status Protection Act (“CSPA”)?
The CSPA is an attempt by Congress to address the BCIS (formerly known as the INS) and State Department processing delays in approving permanent residency status. Prior to CSPA, any children beneficiaries of immigrant visa petitions who turned 21 before their immigrant visa or adjustment of status was adjudicate were no longer eligible for the immigrant visa. This is commonly known as aging out. Backlogs at BCIS and the State Department meant that even though the visa petitions or adjustment of status applications were filed long before the children turned 21, they aged out and could not be granted permanent residency status. Congress enacted an ameliorative statute allowing the age of children to be artificially frozen if certain conditions were met so that they would not age out.
2. The CSPA sounds straightforward. Have BCIS and the State Department
started applying the CSPA?
The CSPA is a very awkwardly written law. Until recently, the State
Department only allowed its Consulates to apply it in limited situations and
required Consulates seek an advisory opinion from headquarters before
approving immigrant visas under CSPA. Advisory opinions take time to be
issued adding to the processing delays. But, the State Department has
recently issued guidelines to its Consulates on how they should apply the
CSPA without the need for advisory opinions.
The BCIS also initially provided limited guidance to its field offices and
service centers on the application of CSPA. Like the State Department, it
too just issued guidance to its offices on how it interprets the law and how
it should be applied.
3. Who does the CSPA apply to?
Both the State Department and BCIS have advised that the CSPA applies only to those children whose immigrant visa petitions, either as a principal beneficiary or a derivative beneficiary, are approved on or after August 6, 2002. In some very limited circumstances, it may also apply to petitions filed and approved before August 6, 2002.
4. My sister sponsored me for permanent residency. I was interviewed at the Consulate before August 6, 2002 and my eldest child turned 21 just before my interview. Will CSPA now apply for him?
The State Department has limited the application of CSPA in pre-August 6, 2002 cases allowing some children to still benefit under CSPA. This includes children whose parents were sponsored either through family or work petitions for permanent residency. If the child applied for a visa and was refused in cases filed before August 6, 2002 because he aged out, the CSPA will not apply. But, if the child was refused on any other ground, the Consulates must obtain an advisory opinion on how it should apply the CSPA. The State Department anticipates the majority of its CSPA cases will be pre August 6, 2002 cases. It has therefore instructed its Consulates to begin any CSPA case by determining whether the age out child was ever denied a visa on the grounds that he aged out.
The BCIS considers pre August 6, 2002 cases that have had no final determination made before August 6, 2002 to be eligible for CSPA. This has been expanded to include petitions filed before August 6, 2002 that are pending. A pending visa petition includes those on motions to reopen or reconsider or on appeal with the Administrative Appeals Office or the Board of Immigration of Appeals. But, this is limited to those appeals filed and/or pending on August 6, 2002.
Motions to reopen or reconsider based on the child aging out because of BCIS delay will not count. If the BCIS, or its predecessor, the INS, denied an immigrant visa petition because the child had aged out, motions to reopen or reconsider will not allow the child to obtain CSPA benefits.
5. I am processing my immigrant visa at the U.S. Consulate and my eldest
turned 21 on August 6, 2002. Does CSPA apply?
CSPA will apply to children who turn 21 on August 6, 2002. The children will have to meet the other criteria of the law to obtain its benefit..
6. I became a U.S. citizen in October 2002. I petitioned for permanent residency for my children in November 2002. My eldest turned 21 in December 2002. Has he aged out?
Generally, the child has not aged out. The CSPA freezes the age of the unmarried children of U.S. citizens in three circumstances. First, if the child is not sponsored until after the parent becomes a U.S. citizen, the child’s age is frozen on the date of the filing of the petition. In the question above, the controlling age for the children would be their ages in November 2002. If the BCIS or State Department took four years to process the case, the children would still be considered to be under the age of 21.
Second, if a parent sponsors children when the parent is a permanent resident and then becomes a U.S. citizen, the children’s ages are frozen on the date the parent becomes a U.S. citizen. For instance, if in the above question, the parent filed immigrant petitions for her children before October 2002, their ages would freeze the day she became a U.S. citizen.
The third circumstance where a U.S. citizen’s child’s age is frozen involves dissolution of marriage. The married children of a U.S. citizen cannot be petitioned for as an immediate relative. If the child of a U.S. citizen is married and subsequently divorces before reaching the age of 21, that child’s age can be frozen under CSPA. The U.S. citizen parent must have filed an immigrant petition. The child’s age would freeze on the date the divorce became effective as long as that occurred before the child turned 21.