dreamstime_m_5775452For most young people in the United States and around the world, the 21st birthday is a cause for celebration. For immigrants without permanent status, however, it is often a cause for concern. That is because they are concerned about “aging-out” and no longer being eligible for certain immigration benefits.  Fortunately for some people though, the Child Status Protection Act (CSPA) was enacted in 2002 in an attempt to protect children.  But unfortunately, it does not help all children.

Overview
The process to obtain a green card is often wrought with long delays and waitlists. Even when a petition is filed well in advance of a child’s 21st birthday, it is not uncommon for that child to “age-out” and therefore not be eligible for the desired immigration benefit, or potentially have to wait an additional several years before they do become eligible.

When an applicant for a green card turns 21 before they have been granted permanent resident status, they will no longer be considered a “child” according to the Immigration and Nationality Act.  Rather, assuming they are unmarried, they will now be considered an “unmarried son or daughter.”  This distinction may seem silly, but if they foreign national is not protected by the CSPA, it could mean they have to wait many more years before they will be issued their green card. To prevent young people from enduring such an agonizing – and unfair – process, the CSPA was formed. An experienced immigration lawyer can help you protect your children from aging out before they receive their green card.

Benefits for “Immediate Relatives”
According to U.S. immigration law, a “child” is an unmarried individual under age 21. When a child is the “immediate relative” of a U.S. citizen, he will not be subject to the U.S. Citizenship and Immigration Services (USCIS) and Department of State (DOS) limits on the number of annual green cards issued. For this reason, children of U.S. citizens rarely have to wait long before becoming eligible for a green card. Prior to the formation of the CSPA, however, even U.S. citizens had to file Form I-130 well before their child’s 21st birthday to prevent “aging out.”

Thanks to the CSPA, your child now remains an “immediate relative” even if final approval comes after she turns 21, as long as Form I-130 is received by USCIS before her 21st birthday. All “immediate relative” visa petitions are covered by the CSPA. That being said, if the child is married or has already turned 21, she will not be afforded the same protections. For this reason, any U.S. citizen wanting their child to become a permanent resident of the U.S. must file Form I-130 before the child gets married and before the child turns 21. Marriage will make the child – even if under age 21 – ineligible to apply as an “immediate relative.”

Does the CSPA Protect Children of Green Card Holders?
The information above pertains to children of U.S. citizens, but what if you are a green card holder and want to petition your child?  Or what if you have already received your green card but was told that your child could not enter the U.S. as your derivative because they had already “aged-out?”

Under the CSPA, children of green card holders do not receive the same “immediate relative” status as children of citizens. But all is not lost. The CSPA does offer some protections to children of green card holders.  Whether your child is protected by the CSPA will involve many factors, including their date-of-birth, the number of days the underlying petition was pending with the USCIS, when the priority date became current, etc.

CSPA calculations are unique to each case and are complex since they involve so many different factors to consider.  But just because your child has turned 21-years-old does not automatically mean they have “aged-out.”  They may very well be protected by the CSPA, even without you knowing it.  Since the lack of CSPA protection may likely mean long delays in obtaining a green card, it is suggested that you consult with a skilled immigration attorney regarding this issue. Also, the CSPA has strict deadlines! If you delay, you may not be eligible for CSPA protection even though you may have been eligible if you had acted timely.

 Is Your Child Already a U.S. Citizen?
Keep in mind that if you are a U.S. citizen, there is a chance that your child already is as well. Depending on multiple factors, including the length of time the parents have been in the U.S. and the child’s date of birth, some children qualify for automatic citizenship. Please see our articles regarding automatic acquisition of U.S. citizenship and acquiring U.S. citizenship at birth.

Reeves Miller Zhang & Diza – Full-Service Immigration Law
If you have questions regarding the CSPA and “aging-out,” the lawyers at Reeves Miller Zhang & Diza can help. We will analyze the details of your case to determine the most effective strategy, and our team will work tirelessly to protect your child’s ability to become a permanent resident of the United States. Our experienced, knowledgeable immigration attorneys will remain by your side throughout the entire process. We are here to help you with every detail of the immigration process – from completing complex forms to fighting deportation proceedings. Contact Reeves Miller Zhang & Diza today for a confidential consultation about your case.

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