The Child Status Protection Act (CSPA) was enacted to protect the status of a “child” who is eligible to obtain lawful permanent resident (LPR) status (Green Card).
Under the Immigration and Nationality Act (INA), a “child” is one of the classifications to be qualified to obtain a Green Card. INA defines a “child” as a person who is unmarried and under 21 years old.
However, due to large processing backlogs of USCIS, many children who applied for a Green Card as a “child” turn 21 before being approved for LPR status (“aging out”). And once such children age out, they may have to file a new application for a Green Card or may no longer be eligible for a Green Card.
To prevent such “age-out,” CSPA either “freezes” or provides a method for calculating the age of certain children who are Green Card applicants for immigration purposes (“CSPA age”). If the CSPA age is under 21 (and if remain unmarried), such applicants may keep their “child” status for Green Card applications.
Who is eligible for CSPA?
CSPA applies to the following Green Card applicants:
- Immediate relatives (including derivatives of widow(er)s);
- Violence Against Women Act (VAWA) self-petitioners and derivative applicants;
- Family-sponsored preference principal or derivative applicants;
- Employment-based preference derivative applicants;
- Diversity Immigrant Visa (DV) derivative applicants;
- Derivative refugees; and
- Derivative asylees.
To be eligible for CSPA consideration, these applicant also must have either the qualifying application (Application to Register Permanent Residence or Adjust Status: Form I-485) or one of the following underlying forms that was filed or pending on or after August 6, 2002 (the effective date of CSPA):
- Form I-130: Petition for Alien Relative;
- Form I-360: Petition for Amerasian, Widow(er), or Special Immigrant;
- Form I-140: Immigrant Petition for Alien Worker;
- Form I-526: Immigrant Petition by Alien Entrepreneur;
- Form I-526E: Immigrant Petition by Regional Center Investor;
- Form I-589: Application for Asylum and for Withholding of Removal;
- Form I-590: Registration for Classification as a Refugee; or
- Form I-730: Refugee/Asylee Relative Petition.
CSPA applies to both noncitizens abroad who are applying for an immigrant visa (Green Card) through the Department of State (DOS) and noncitizens in the U.S. who are applying for adjustment of status through USCIS.
How does CSPA work?
Immediate relatives (including VAWA self-petitioners and derivative applicants)
CSPA “freezes” the age of the following Green Card applicants on the date the Form I-130 or Form I-360 petition is filed, if they meet certain conditions:
- Immediate relatives (including VAWA self-petitioners and derivative applicants)
To qualify for CSPA, these applicants must:
- Have had one of the Form I-130, Form I-360, or Form I-485 approved or pending on or after August 6, 2002;
- Have been under 21 and unmarried at the time the Form I-130 or Form I-360 was filed; and
- Remain unmarried.
Once CSPA freezes their age, they may keep the “child” status and will not age out.
What happens if the Form I-130 petitioner passed away?
If a U.S. citizen who filed Form I-130 for his/her spouse dies, the Form I-130 automatically converts to a widow(er)’s Form I-360. The widow(er)’s children, if any, can be classified as derivatives on the automatically converted Form I-360. Such children qualify for CSPA so far as they are under 21 and unmarried at the time of the petitioner’s death.
What happens if the Form I-130 petitioner is naturalized?
Child of LPR (F2A)
If a LPR parent who filed Form I-130 for his/her child becomes a U.S. citizen, the petition is automatically converted to an immediate relative case. If the parent became a U.S. citizen before the child turned 21, the age of the child freezes on the date the parent became a U.S. citizen, and the child will not age out.
Unmarried son or daughter of LPR (F2B)
If a LPR parent who filed Form I-130 for his/her unmarried son or daughter becomes a U.S. citizen, the petition is automatically converted to an unmarried son or daughter of a U.S. citizen case (F1). However, the child may choose to opt out of the automatic conversion. He or she may do so by submitting a signed written request with certain information to the USCIS that approved the Form I-130.
Family-sponsored preference principal or derivative applicant (including VAWA self-petitioners and derivative applicants)/Employment-based preference derivative applicants/DV derivative applicants
CSPA provides a formula to calculate the CSPA age of the following Green Card applicants:
- Family-sponsored preference principal or derivative applicants (including VAWA self-petitioners and derivative applicants);
- Employment-based preference derivative applicants; and
- Diversity Immigrant Visa (DV) derivative applicants.
To qualify for CSPA, these applicants must meet the following requirements:
1. Applicants must have had a qualifying petition or adjustment application pending on or after August 6, 2002
The applicants must have had a qualifying underlying petition (i.e., Form I-130, Form I-360, Form I-140, Form I-526, DV Program electronic entry form) or adjustment application (Form I-485) pending on or after August 6, 2002.
2. Applicants’ CSPA age must be under 21 years old
The CSPA age is calculated as follows:
Age at the time of visa availability – Pending time = CSPA age
“Age at the time of visa availability”
For family and employment-based Green Card applicants, age at the time of visa availability is the applicants’ age on the date the immigrant visa becomes available to him or her. The date the visa is considered available is the later of the following two dates:
- The date the petition was approved; or
- The first day of the month of the DOS Visa Bulletin that indicates that a visa is available for the applicants.*
*Update on June 2, 2023: On February 14, 2023, USCIS published Policy Alert to update when an immigrant visa “becomes available” for the purpose of calculating CSPA age. Since October 2015, the Visa Bulletin has featured two charts per immigrant preference category (Dates for Filing Chart and Final Action Dates Chart). This updated policy is to resolve any apparent contradiction between different dates in the two Charts regarding when a visa is “available” for the CSPA age calculation purpose. Under the new policy, applicants must check the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage and check which Chart USCIS designates for use by applicants each month for accepting and processing adjustment of status applications. USCIS uses the the Chart designated each month when calculating the applicant’s CSPA age.
For DV derivative applicants, the date a visa is considered available for CSPA is the first day when the principal applicant’s rank number is current for visa processing.
For family and employment-based Green Card applicants, pending time is the length of time (number of days) a petition was pending, which is calculated as follows:
Approval Date – Filing Date = Pending Time
For DV derivative applicants, pending time is the period between the start of the DV Program registration period to the date of the DV selection letter.
3. Applicant must remain unmarried
CSPA protects certain children by preventing “age-out.” However, it does not change the requirement that the applicants must be unmarried to qualify for a “child” for immigration purposes. Thus, Green Card applicants as a “child” must remain unmarried to qualify for a Green Card.
4. Applicant must have sought to acquire LPR status within 1 year of the visa becoming available (“Sought to Acquire Requirement”)
Green Card applicants under a family (including VAWA) or employment-based preference or DV must seek to acquire LPR status within 1 year of the visa becoming available to him or her. They may satisfy the requirement by:
- Properly filing a Form I-485: Application to Register Permanent Residence or Adjust Status;
- Submitting a completed Part 1 of Form DS-260: Immigrant Visa Electronic Application to the DOS;
- Paying the immigrant visa fee to the DOS;
- Paying the Form I-864: Affidavit of Support review fee to the DOS (if the applicant is listed on the Affidavit); or
- Having a properly filed Form I-824: Application for Action on an Approved Application or Petition on behalf of the applicants.
USCIS also considers a written request to transfer the underlying basis of the adjustment of status application that USCIS received within 1 year of an immigrant visa becoming available in the new preference category.
Despite the requirements above, USCIS may excuse the 1-year deadline if the applicant can establish that the failure to satisfy the sought to acquire requirement within 1 year was the result of “extraordinary circumstances.”
To establish “extraordinary circumstances,” the applicant must demonstrate that:
- The circumstances were not created by the applicant through his or her own action or inaction;
- The circumstances directly affected the applicant’s failure to seek to acquire within the 1-year period; and
- The delay was reasonable under the circumstances.
CSPA “freezes” the age of Green Card applicants who are derivative refugees on the date of the principal refugee applicant’s interview with a USCIS officer, if the derivative refugees:
- Had the Form I-590 or Form I-730 pending on or after August 6, 2002; and
- Were under 21 years old and unmarried at the time of the principal refugee applicant’s interview.
Thus, derivative refugees who satisfy the conditions above may keep the “child” status and will not age out. Such derivative refugees need not to be unmarried to adjust status to LPR. However, they must be unmarried to be admitted to the U.S. as derivative refugees.
CSPA “freezes” the age of Green Card applicants who are derivative asylees on the date the principal asylum applicant filed his or her Form I-589, if the derivative asylees:
- Had one of the Form I-730, Form I-589, or Form I-485 pending on or after August 6, 2002;
- Were under 21 years old and unmarried at the time the principal asylum applicant’s Form I-589 was filed; and
- Remain unmarried at the time they seek adjustment of status.
Thus, derivative asylees who satisfy the conditions above may keep the “child” status and will not age out.