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The Child Status Protection Act: September 2024 Update
When parents immigrate to the United States, their children are eligible to immigrate with them under certain circumstances. But the term “child” has a very specific meaning as far as the United States Citizenship and Immigration Services (USCIS) is concerned, and that has led to problems with children of immigrants having eligibility for government visas or being able to obtain lawful permanent resident (LPR, or green card) status.
The Immigration and Nationality Act (INA) defines a “child” for immigration purposes as a person who is both unmarried and under 21 years old. But what happens if someone applies for a green card when they meet the INA’s definition of a child, but turn 21 before being approved for LPR status?
This is referred to as “aging out,” and it is unfortunately common, as the immigration process can take a long time. Some children who age out must wait longer to get a green card, or may have to file a new petition or application. Some become ineligible altogether.
The Child Status Protection Act (CSPA) was a response to this problem. The law, which took effect on August 6, 2002, was designed to prevent immigrant children from aging out of the immigration process due to USCIS backlogs.
How Does the CSPA Work?
The CSPA does not change the INA’s definition of a child, but it does “freeze” a person’s age for immigration purposes to prevent them from losing eligibility for a visa or green card. The law applies to beneficiaries in the following categories:
- Family-based immigration
- Derivative beneficiaries in employment-based categories
- Refugees and asylees
- Certain diversity lottery winners
The CSPA does not apply to immediate relatives of U.S. citizens. Because there is no quota on visas for immediate relatives which could lead to backlogs, they do not need the protections of the CSPA. If an unmarried child of a U.S. citizen turns 21 before their Form I-130 petition is processed, they are simply reclassified automatically into the F1 family preference category.
For those to whom the act does apply, the CSPA calculates the age of a child based on the date of visa availability instead of their actual age on the date their case was adjudicated. The CSPA has required beneficiaries to seek lawful permanent residence status within one year after an immigrant visa becomes available, such as by completing Form I-485.
This is known as the “sought to acquire” requirement of the CSPA. It assumes that once an immigrant visa becomes available, it remains continuously available, which is not always the case.
What’s New with the Child Status Protection Act in 2024?
On September 25, 2024, USCIS issued new policy guidance regarding age calculation under the Child Status Protection Act. This guidance applies to the “sought to acquire” requirement. The policy guidance states that “extraordinary circumstances may warrant the exercise of discretion to excuse an applicant who failed to seek to acquire LPR status within 1 year of immigrant visa availability.”
In other words, a beneficiary who failed to apply for a green card within a year of an immigrant visa becoming available is not necessarily barred from preserving their legal status as a child under the CSPA. The beneficiary must provide evidence of the “extraordinary circumstances,” not of their own making, that prevented them from applying for a green card. The circumstances must have directly affected their failure to seek LPR status during the one year period, and the delay must have been reasonable under the circumstances.
Extraordinary circumstances beyond the beneficiary’s control could include a serious illness or injury with a protracted recovery, or even an earthquake or other natural disaster that impacted their ability to apply for a green card. If the beneficiary is able to establish these extraordinary circumstances and their effect, immigration officials can exercise discretion to preserve the beneficiary’s status as a child under the CSPA.
The new policy guidance also helps those beneficiaries for whom a visa became available, but did not remain continuously available during the one-year period. If extraordinary circumstances prevented application for a green card before the visa became unavailable, USCIS may calculate the applicant’s age under the CSPA using the date that the visa was first available.
How Can I Benefit From the New CSPA Policy Guidance?
If you think you might be eligible for protection under the CSPA, especially given the new policy guidance, you should speak with an experienced immigration attorney as soon as possible. Your attorney will explain your options and help you complete your petitions accurately and in a timely fashion.
If you would like to learn more about the Child Status Protection Act and how you may be able to benefit from policy updates, please contact our law office to schedule a consultation.
Categories: Immigration Law
