Child Status Protection Act
The Child Status Protection Act (CSPA) was signed into law by President George Bush on August 6, 2002. CSPA protects children who would otherwise "age out" by turning 21 before being eligible to adjust status or process for an immigrant visa. CSPA protects both children who are derivative beneficiaries of petitions filed for a parent and those who are the direct beneficiaries of petitions filed by a parent. CSPA subtracts from the child's age any period that a petition was pending a processing delay with USCIS and also allows a child to retain his own or his parent's priority date and use it in a different preference category if the child "ages out" before being able to immigrate.
The law defines child for immigration purposes as an unmarried person under age 21. 8 USC 1153(d). Children under age 21 may be the direct beneficiary of a petition filed by a US citizen or permanent resident parent, or a derivative beneficiary as the dependent child of a parent who is the beneficiary himself of a petition filed by the parent's sibling or parent. In both cases, the child, as defined by law, must be under age 21 to be eligible to immigrate -- regardless of whether by adjustment of status inside of the United States, or consular processing outside of the United States.
age out protections
CSPA provides the following important benefits for both direct and derivative beneficiaries of immigrant petitions:
- For direct beneficiaries of a petition by a permanent resident parent, determine the beneficiary's age at the time a visa number becomes available and subtract the period that the immigrant visa petition was pending. If with the delay subtracted the child is under age 21, then he is eligible to adjust or consular process, if he is over age 21, then he is not.
- For derivative beneficiaries of an I-130 petition filed by a grandparent or uncle for the child's parent, or an I-140 petition filed by an employer for the child's parent, the same rule as above applies.
- To secure CSPA benefits the child beneficiary "seek to acquire" permanent residence status within one year of visa availability and the child can meet this requirement by filing an I-485 application ("visa availability" occurs when the child's priority date becomes current).
- CSPA does not protect children who do not file to adjust status within one year of visa availability. For example, if the parent of a child is the beneficiary of an I-140 approval and the priority date was current 18 months earlier and the parent and child now files to adjust status, CSPA will not protect the child if he reaches age 21 before USCIS approves his I-485 and in that case the attorney should make every effort to expedite the case. If USCIS does not approve it before the child's 21st birthday, the child will no longer be eligible to adjust status as a derivative beneficiary.
priority date retention
and automatic conversion
CSPA allows a child who reaches age 21 before a visa number is available to retain the priority date associated with the earlier petition and to automatically convert to a valid adult visa category. 8 USC 1153(h)(3). This provision applies only to the direct beneficiaries of a visa petition and not derivative beneficiaries. A direct beneficiary is the person for whom the visa petition was filed. A derivative beneficiary is that person's spouse or child for whom a separate visa petition was not filed. Courts have held that neither the priority date retention provision, nor automatic conversion applies to the derivative beneficiary of an F3 petition (for married sons or daughters of US citizens), or an F4 petition (for siblings of US citizens). De Osorio v. Mayorkas, No. 09-56785 (9th Cir. 09/02/2011). Matter of Wang, 25 I.&N. Dec. 28 (BIA 2009).
In Matter of Wang, a US citizen filed a petition for her Chinese brother in 1992. The Chinese beneficiary's wife and three children were listed as derivative beneficiaries on the visa petition. By the time the visa petition's priority date was current, the eldest daughter of the Chinese beneficiary was over age 21. Upon adjusting status, her father as a permanent resident filed a petition for her and requested that under the CSPA, USCIS retain the earlier priority date of December 28, 1992. USCIS refused to do so. The BIA found that CSPA benefits only children who are direct beneficiaries of a visa petition and not those who are derivative beneficiaries. According to Wang, derivative beneficiaries who turn age 21 before their priority date is current may not retain the earlier priority date from the petition that listed them as derivative beneficiaries.
In De Osorio, the Ninth Circuit Court of Appeals affirmed the BIA's position in Matter of Wang holding that CSPA does not afford priority date retention rights to derivative beneficiaries in the F3 and F4 categories.
8 USC 1101(b)(1) entitles a child under the age of 21 to the same immigration status as a parent who is the beneficiary of an I-130 immigrant petition based on a family relationship or an I-140 petition based on employment. This is the case only where the spouse or child is not otherwise entitled to immigrant status:
A spouse or child . . . shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a) . . . of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.
The direct beneficiary family based categories listed below correspond to the numbered paragraphs at 8 USC 1153(a):
Family Preference Categories |
|
| F1 | Unmarried sons and daughters of US citizens |
| F2A | Spouses and children of permanent residents |
| F2B | Unmarried sons and daughters of permaennt residents |
| F3 | Married sons and daughters of US citizens |
| F4 | Brothers and sisters of US citizens |
The law before CSPA provided for automatic conversion of preference categories and the retention of priority dates under certain circumstances and those statutes remain valid today. The law before CSPA allowed a child derivative beneficiary of a second-preference spousal petition to retain his priority date if he reached age 21 before his parent was issued a visa. 8 CFR 204.2(a)(4). In such a case, the child (now over age 21) requires a separate petition, but may retain the priority date if the subsequent petition is filed by the same petitioner.
The law before CSPA also allowed for automatic conversion of a second preference category for a son or daughter of a permanent resident (F2B) is "automatically" converted to a first preference category petition (F1) when petitioner naturalizes. 9 CFR 204.2(i). These benefits are still valid law and were not changed by CSPA.
Section 6 of the CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also allows the unmarried son or daughter to request that the automatic transfer not occur. USCIS will accept this type of request by a signed letter. (See USCIS CSPA Memorandum 2, 02/14/2003).
Family Immigration & Deportation Topics
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