By Attorneys Robert L. Reeves & Joseph I. Elias

The Child Status Protection Act (CSPA) was passed by Congress on August 6, 2002 to provide immigration relief to families. One of the best-known provisions of CSPA provides a formula that amends the immigration law definition of, “child.” Before CSPA, a child was defined as the unmarried son or daughter under the age of 21. Immigration is not a speedy process and many families wait several years after a petition or labor certification is filed before they can immigrate to the U.S. as permanent residents. Prior to CSPA, children who reached the age of 21 before the Immigration Service issued the green card, were no longer eligible to get the green card with the rest of their family. These children became known as “age-outs”. Families were forced to separate until these children could find an alternative means to obtaining the green card.

Congress passed CSPA to address this hardship for families with a mathematical formula meant to minimize the number of age outs. In general, the formula would allow the amount of time an immigrant visa was processing to be subtracted from the child’s age on the date the green card application was filed. The formula is complex but a simple example illustrates how the formula generally works. Tessie is petitioned by her U.S. citizen brother in 1982. The INS took 1.5 years to process the petition before it approved it. Several years later, Tessie’s priority date becomes current and she submits her application to interview at the Consulate for her immigrant visa. During these years, Tessie’s eldest daughter, Lilabeth turned 21. At the time the application was submitted for the immigrant visa interview, Lilabeth was 21-years-old and one month. Before CSPA, Lilabeth would not be able to join her family because she had aged-out. But with CSPA, Lilabeth gets to deduct 1.5 years from her age, which would make her 19-years-old, and she can now join her family.

But not all children would be able to take advantage of the formula and would age-out any way. For example, if in the above scenario, Lilabeth was 23-years-old at the time the interview application was submitted, the formula would only drop her age to 21-years old. She has still aged-out.

Congress also provided relief for this situation but limited it only to those cases in which the principal’s priority date became current on or after August 6, 2002, the date of CSPA’s enactment. CSPA states that any children who still age-out after the formula is applied, automatically convert to the next immigrant visa category and retain their parents’ priority date. This retention of the priority date is an important provision. Before CSPA, Tessie would have had to file a new immigrant visa petition for Lilabeth once Tessie became a permanent resident. That meant if Tessie immigrated or adjusted status and filed Lilabeth’s petition on April 1, 2006, Lilabeth’s place in line for the green card, or priority date, would be April 1, 2006.

The additional provision of CSPA changes this. The law says that Lilabeth is automatically converted to the next immigrant category. This means Tessie would not have to file a new petition. Lilabeth would also keep her mother’s priority date of 1982. Because the wait is so long for most people, the retained priority date would also be immediately available. This means that children in Lilabeth’s shoes would be able to obtain permanent residency at the same time as their parents or shortly thereafter.

The Immigration Service stated that it would provide its officers additional guidance on this provision of CSPA. But, none has been issued to date, even though CSPA was passed several years ago. A few East Coast practitioners have been able to successfully obtain green cards for age-out children under this provision. Because guidance has not yet been issued, many children who are eligible to get their green cards have not even applied although the law entitles them to a green card. There are many practitioners who are unaware of this provision.

Applying for this benefit is a complex task precisely because the Immigration Service has not issued guidance. But, children entitled should not have to wait several more years to a right granted to them several years ago. Parents whose children have aged-out, or the children themselves should seek the advice of competent legal counsel to determine if this section of CSPA applies to them. It will take competent counsel to compel the Immigration Service to honor the immigration law and grant the rights established by CSPA.