Child Status Protection Act

On August 6, 2002, the Child Status Protection Act (CSPA) (Pub. L. No. 107-208), was signed by President Bush into law, effective immediately.

The purpose of the CSPA is to preserve child status for certain alien children beneficiaries who may have aged-out, particularly because of long delays in USCIS processing. The CSPA radically changes the process for determining whether or not a child has "aged out" for the purpose of the adjustment of status or the issuance of an immigrant visa in most immigrant categories.

The CSPA protects the children of a U.S. Citizen Parent (USC), children of Legal Permanent Residents (LPR), as well as children of asylum and refugee applicants. Prior to the enactment of the CSPA, the child's age was determined at the time of adjudicating the grant of permanent residence. The CSPA changes the definition of who can be considered to be a "child" for the purpose of adjustment of status of aliens by the USCIS, and for purposes of the issuance of visas by U.S. Consulates abroad. Basically, the CSPA defines certain earlier points of time when the child's age is determined, after which it does not matter if the child turns age 21.

In order to qualify for Child Status Protection, the child must be the beneficiary of a pending or approved visa petition on or after August 6, 2002, must not have had a final decision on an application for adjustment of status or immigrant visa before August 6, 2002, and must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS defines “seek to acquire” as having a Form I-824 (Application for Action on an Approved Application or Petition) filed on the child’s behalf or the filing of a Form I-485 (Application to Registered Permanent Residence or Adjust Status) OR submitting Form DS-230 (Application for Immigrant Visa and Alien Registration) with the Department of State. The date of visa availability means the first day of the first month a visa was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later. Thus, it is important to take these steps as soon as possible to ensure that a child will be considered eligible under CSPA. That being said, the Department of State has accepted a wider interpretation of what actions will be considered “seeking to acquire” permanent residence, so certain other steps to establish permanent residence could be accepted within this definition.

CSPA also provides another type of relief, known as “Opt-Out”, an option quite limited in scope. If a permanent resident petitioner filed a Form I-130 (Petition for Alien Relative) for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a first preference classification. This can be beneficial if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa.

In addition, CSPA provides protection for certain refugee and asylee children who aged out on or after August 6, 2002. The child must remain unmarried to benefit from CSPA protection.

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