Consular Processing for Employment-Based Immigration and Related Application of Child Status Protection Act (CSPA)
Attorney Jerry Zhang
I. Introduction
Consular Processing for immigrant visas refers to the procedure or process through which an immigration applicant or beneficiary, after the approval of an immigration application (such as I-140, I-360, or I-526 employment-based immigration petitions) and the availability of an immigrant visa, applies for an immigrant visa at a U.S. consulate abroad. This process is the last step for the immigration applicant or beneficiary to obtain an immigrant visa through an oversea US consulate.
The complete process of obtaining U.S. permanent resident status (green card) via employment based immigration typically includes an immigration application and adjustment of status if the alien beneficiary is in the US, or an immigration petition and consular processing if the alien beneficiary is outside the US. Employment-based immigration, as a major category of immigration applications, attracts many aliens with professional skills and/or work experience who hope to start a new life in the United States through this pathway.
During the processes, many principal beneficiaries of the immigration petitions not only seek to obtain green cards for themselves but also hope to obtain green cards for their children, enabling family reunification and development. After all, the growth and education of children are among the top concerns or objectives for many parents.
However, before the CSPA, during the process of obtaining a green card through employment-based immigration, the principal beneficiaries and derivative beneficiaries (including the principal beneficiary’s spouse and children) often face lengthy waits and complex legal procedures, especially when children are involved. Prolonged processing times for an immigration application and the waiting period for immigrant visa availability may result in some children aging out (reaching or exceeding 21 years of age by the decision date of consular process or adjustment of status), thereby losing eligibility to obtain a U.S. green card alongside their parents.
The Child Status Protection Act (CSPA) was enacted to address this issue. The Act aims to ensure that certain unmarried children who may age out during the immigration process can still qualify to obtain a green card. This article will delve into the consular processing for employment-based immigration and explain how CSPA plays a role in this process, maximizing the protection of some children's eligibility to obtain green cards alongside their parents.
II. Overview of Consular Processing for Employment-Based Immigration
After the approval of an employment-based immigration petition, if an immigrant visa number is available, the principal beneficiary, his or her spouse, and unmarried children under 21 can complete the immigrant visa application and interview at the U.S. consulate in their home country, ultimately obtaining an immigrant visa to enter the United States. This process is known as the consular processing for employment-based immigration.
The consular processing for employment-based immigration primarily applies to those principal beneficiaries, their spouses, and unmarried children under the age of 21, who reside outside the United States. For them, the consular processing serves as the primary pathway to obtaining a green card.
1. Steps in Employment-Based Immigration and Consular Processing (Using I-140 as an Example):
(1) Submit an I-140 Petition: The I-140 petition must be submitted to the U.S. Citizenship and Immigration Services (USCIS).The date USCIS receives the I-140 is the priority date for this employment-based immigration petition.
However, for immigration categories requiring a labor certification (PERM) under EB-2 and EB-3, the priority date is the date the Department of Labor (DOL) receives the labor certification application, not the date USCIS receives the I-140 petition.
(2) Wait for Visa Availability: After the I-140 is approved, the principal beneficiary and/or derivative beneficiary must wait for a visa number to become available.
Whether the principal beneficiary and/or derivative beneficiary can obtain a visa number depends on whether the priority date of the employment-based immigration petition is earlier than the cutoff date listed in the Visa Bulletin under the Final Action Date Chart (Chart A).
If the priority date is earlier than the Final Action Date shown in the Visa Bulletin, the principal beneficiary and/or derivative beneficiary are eligible for an immigrant visa. Conversely, if the priority date is equal to or later than the Final Action Date shown in the Visa Bulletin, the principal beneficiary and/or derivative beneficiary do not have an immigrant visa available and must wait until the priority date is earlier than the Final Action Date shown in the Visa Bulletin.
Important: Sometimes, USCIS or the U.S. Department of State allows beneficiaries to use the Dates for Filing Chart (Chart B) to initiate consular processing with the National Visa Center (NVC), locking in a child’s age to determine whether he or she meet the CSPA age requirements.
Compared to Chart A, the dates on Chart B are usually later (i.e., closer to the present date), meaning a beneficiary can initiate consular processing earlier than the date when his or her immigrant visa number becomes available.
When calculating the CSPA age for a child, using Chart B reduces the waiting time for visa availability (compared to Chart A), allowing more children to lock in their age before turning 21 and benefit from CSPA protection. This approach provides greater flexibility and more opportunities for many families.
(3) National Visa Center (NVC) Processing: When a visa number becomes available, the NVC will notify the principal beneficiary and/or derivative beneficiaryto pay the required fees (such as the immigrant visa processing fee) and submit the necessary documents (e.g., Form DS-260, birth certificate).
(4) Consular Interview: After document review, the principal beneficiary and/or derivative beneficiarymust attend an interview at the local U.S. consulate to verify family relationships and immigration eligibility.
(5) Visa Issuance and Entry: After the interview is approved, the principal beneficiary and/or derivative beneficiarywill receive an immigrant visa and must enter the U.S. within six months to activate their permanent resident status.
2. Prior to CSPA, a Key Challenge Some Families Faced is a Risk of Children Aging Out: Employment-based immigration petitions, such as I-140, often involve lengthy processing times. Moreover, beneficiaries must still wait for a visa number to become available before proceeding to the next steps, such as the consular processing, to obtain an immigrant visa. For principal beneficiaries from certain countries, such as those born in mainland China or India, the wait for an available immigrant visa number can be particularly long. During this extended waiting period, some children in families continue to age, and some may even reach or exceed 21 years of age. Once they age out, under the immigration policies at the time, these children would have lost their eligibility to obtain an immigrant visa. Many families were deeply concerned about this issue but had no solutions.
III. The Child Status Protection Act (CSPA)
The core objective of CSPA is to address the aforementioned challenge: certain foreign nationals are initially classified as "children" during the immigration process, but due to prolonged processing times, they reach or exceed 21 years of age while waiting, thereby losing their eligibility to obtain a green card as "children."
Under Section 101(b)(1) of the Immigration and Nationality Act (INA), a "child" is defined as an unmarried person under 21 years of age. CSPA does not change this definition but provides a method to calculate a beneficiary’s "immigration age," known as the "CSPA age." This method aims to protect certain beneficiaries who may be aged out due to delays in immigration processing, allowing them to retain their eligibility to obtain a green card.
It is important to note that CSPA does not change the requirement that derivative beneficiaries must remain unmarried. If a derivative beneficiary marries during the waiting period, he or she will lose the eligibility to obtain a green card as a "child."
Per USCIS’s Policy Manual, CSPA applies to "both aliens abroad who are applying for an immigrant visa through the Department of State (DOS) and aliens physically present in the United States who are applying for adjustment of status through USCIS." Although Chapter 7 of the Policy Manual primarily focuses on the impact of CSPA on adjustment of status applicants, USCIS emphasizes that "the same principles generally apply to aliens seeking an immigrant visa through DOS." (https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7)
IV. Practical Application of CSPA in Consular Processing for Employment-Based Immigration (Using I-140 as an Example):
CSPA Age Calculation for A Child: CSPA age = Child’s Actual Age at the Time of Visa Availability – Pending Time of I-140 Petition
1. Pending Time of I-140 Petition: This refers to the number of days from the date the USCIS receives the I-140 petition to the date the petition is approved.
2. How to Determine When a Visa Number Becomes Available?
The U.S. Department of State’s Visa Bulletin provides two key charts: the aforementioned Chart A (Final Action Date Chart) and Chart B (Dates for Filing Chart). The dates on Chart B, if the USCIS or DOS decide to be open, indicate whether beneficiaries can begin preparing and submitting documents to the National Visa Center (NVC), even if a visa number is not yet available for them under Chart A.
To freeze a child’s age and benefit from CSPA protection, the family must take one of the following actions when the child’s priority date is earlier than the date shown on Chart B:
Important: Children must complete subsequent steps (such as submitting Form DS-260 or paying the immigrant visa fee) within one year of the visa number becoming available, or they will lose CSPA protection.
CSPA reflects the U.S. immigration laws’ humane consideration for family unity, but its complex legal details require professional guidance. Applicants facing the risk of aging out should consult an immigration attorney promptly to ensure their rights are protected.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, P.C.
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(03/05/2025)