What is the Child Status Protection Act (CSPA)? In immigration regulations, a “child” is defined as an unmarried person under the age of 21. Until August 2002, any child who turned 21 before receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many people were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect an individual’s immigration classification as a child when the person aged out due to excessive processing times.
This situation most often involves the grandchildren or the nieces and nephews of US citizens. Their petitions were filed at least 8 years ago and by now some of the children in the family have reached with 21 years of age.
There are several steps in deciding if an over-20 child can accompany the parents to the US. First we look at the age of the child on the date that the petition became eligible for visa processing. From that, we subtract the length of time that it took CIS to process the petition. For example, if it took CIS three years to approve the petition, then that three years can be subtracted from the child’s age.
How does CSPA work? If you are an Immediate Relative of a Naturalized U.S. Citizen, the child’s age freezes at time the visa petition is filed (Form I-130). If the child is under the age of 21 on the date of the filed immigrant petition, he/she will not ‘age out’. If a child becomes an immediate relative through the petitioner’s naturalization, the child’s age freezes on the date of the petitioner’s naturalization.
In the cases of Permanent Residents, the CSPA allows the time a visa petition was pending to be subtracted from an applicant for permanent residence’s biological age so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition. If the immigrant petition was approved and the priority date becomes current before the applicant’s ‘CSPA age’ reaches 21, the child will not ‘age out’
For a preference category and derivative petitions, your ‘CSPA age’ is determined on the date that your visa becomes available. Your CSPA age is the result of subtracting the number of days that your immigrant visa petition was pending from your actual age on the date that your visa becomes available. If your ‘CSPA age’ is under 21 after that calculation, you will remain a child for purposes of the permanent residence application.
There has been some confusion recently because the visa cut off dates moved backwards, meaning longer processing times and higher ages for the children. However, if the CSPA age of the child was under 21 at the time that the case first became eligible for interview, then it is still frozen at that below-21 age. There is no need to be concerned about the retrogression of the cut off dates.
Who decides if the CSPA can apply to a child over 20? The National Visa Center (NVC) can do this before they send the petition to the US Consulate in Saigon. However, NVC often wants to leave the decision up to the Consulate, so they do not include the name of the over-20 child when they send the file to the Consulate.
In such a case, it is up to the Consulate to check the file and see if the over-20 child is eligible for CSPA. However, at this point, the procedure sometimes fails. Several times each month our office is contacted by clients who say that a child appears to be eligible for the CSPA, but the Consulate has not included the child on the interview list.
Some families are not familiar enough with the CSPA and they make the mistake of thinking that any child over 20 will not be eligible to go to the States with them. In fact, many children in the 21-23 year age range do have a chance of qualifying for the CSPA. Even some older children might qualify.
Q.1. How can I know for sure if an over-20 child is eligible for CSPA?
A.1. You can contact any of our offices in California or Saigon. We will do the CSPA calculation for you, and will let you know if it is necessary to contact the Consulate.
Q.2. What should I do if an over-20 child appears to be eligible for CSPA but is not included on the interview list?
A.2. You should immediately contact the Consulate in Saigon, or, if you are one of our clients, contact any RMI office.
Q.3. The National Visa Center (NVC) said that my son could benefit from the CSPA, but when his file arrived at the Consulate in Saigon, the Consulate said that NVC made a mistake. Who is right – NVC or the Consulate?
A.3. The Consulate has the final say, regardless of what NVC says.
ROBERT MULLINS INTERNATIONAL www.rmiodp.com
Immigration Support Services-Tham Van Di Tru
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