CHILD STATUS PROTECTION ACT
Can Children of U.S. Citizens or Lawful Permanent Residents obtain U.S. Visas?
The Immigration and Nationality Act permits qualifying U.S. citizens and lawful permanent residents (LPRs) to petition for certain family members, such as children, to obtain immigrant visas. A sponsored individual, known as the principal beneficiary, is placed into a “family preference” category based on his relationship with the petitioner. The principal beneficiary’s spouse and minor children in turn qualify as derivative beneficiaries, “entitled to the same status” and “order of consideration” as the principal. The beneficiaries then become eligible to apply for visas in order of “priority date,” or the date a petition was filed. For more detailed information on this process and to learn more about preference categories, please read more in our section here. [LINK TO FAMILY IMM PRIMER]
What is the Child Status Protection Act under USCIS?
The immigration process often takes years or decades to complete, a child seeking to immigrate may “age out” or reach adulthood and lose her immigration status—before he or she reaches the front of the visa queue. Congress tried to fix the problem in 2002 when it passed the Child Status Protection Act, or CSPA. The CSPA provided relief to children who “age-out” as a result of delays by the U.S. Citizenship and Immigration Services (USCIS) in processing visa petitions and asylum and refugee applications. CSPA used an age preservation formula for calculating the age of a beneficiary of a preference visa petition. This formula allowed some beneficiaries to preserve their age as under 21 even if, chronologically, they were over 21 years of age.
In this way, a child could remain a beneficiary on a pending visa petition despite having aged-out. CSPA also was applied to immediate relative children in cases where a petitioning permanent resident parent naturalizes, or when a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed. Some principal and derivative beneficiaries will have their petitions automatically converted to the appropriate category, and retain the original priority date. To apply for CSPA or for assistance in determining if CSPA is the best option for you, please contact our experienced Los Angeles immigration attorneys today! [LINK TO CONTACT JCS]
U.S. Immigration Law Reform and CSPA
As of June 2014, the Supreme Court decided that the CSPA applied only to a narrow category of immigrants, leaving out most of the children affected by “aging out.” The new ruling serves to severely limit which derivative beneficiaries of visa petitions could retain their parents’ priority dates. The government feared that applying CSPA too broadly would lead to too many young adults entering the country ahead of others waiting in line.
Essentially, the Court found that aged-out children must continue to have a qualifying preference relationship with the initial petitioner. The only immigrants who can maintain their spot in line from the original application date are those who would already qualify under the valid new adult category. Children of petitioners who are 21 years of age or older cannot be automatically converted to a new category while preserving the petition date of his or her parent petitioner. This may prove difficult for many applicants, as the aged-out beneficiary’s parent must retain the same status that he or she had at the time of the petition for the child. Under the new ruling, if the parent has changed immigration status since that time, e.g., if a LPR parent has naturalized in the interim, then a new, qualified sponsor will need to be ready to step into the old one’s shoes at the time of aging out.
Eligibility Requirements for CSPA Applicants
The new Supreme Court ruling and immigration reform of CSPA must be considered in assessing applicant eligibility for CSPA benefits. In general, the following applicants may still be eligible for CSPA:
- Immediate relatives
- Direct beneficiaries of family based preference petitions
- Derivative beneficiaries of family and employment-based preference petitions
- Diversity Visa applicants
- Asylee and Refugee Derivatives
CSPA applicants must also:
- be the beneficiary of a pending or approved visa petition on or after August 6, 2002
- not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002
- “seek to acquire” permanent residence within 1 year of a visa becoming available
- retain the same relationship with the same petitioner as when the petition was filed
Immigration law is a very complex field. Immigration laws are constantly changing and the reforms may have substantial impact on your case. Do not rely on advice from immigration consultants who are not trained and licensed attorneys, or from family and friends who may have immigrated when laws were different. If you have any questions or concerns regarding your eligibility for CSPA, please feel free to contact JCS Immigration and Visa Services for your free initial consultation. Our experienced Los Angeles immigration attorneys are committed to meeting all of your immigration needs. [LINK TO CONTACT JCS]
Who Determines if CSPA Eligibility Requirements Have Been Met?
USCIS makes preliminary determinations of possible eligibility at the time of the immigrant petition adjudication. The final determination is made at the time of adjustment of status or immigrant visa issuance.
Relief under the CSPA by Requesting the USCIS Allow an Applicant to Opt Out
If a permanent resident petitioner applied for an unmarried son or daughter prior to the petitioner naturalizing, the beneficiary child can choose to stay in the second preference classification instead of converting to a 1st preference. This may be beneficial if the waiting time for the 2nd preference is shorter than for the 1st. In order to keep from automatically converting to the 1st preference classification, the beneficiary must make a request in writing to USCIS.
Confirm that Your Child Isn’t Already a U.S. Citizen Before Pursuing CSPA
If you are a U.S. citizen hoping to bring your child to the United States or legalize the child’s status here, you can save yourself a lot of effort by checking into whether your child is already a U.S. citizen. The rules for who may acquire U.S. citizenship through their parents have changed throughout the years and who will qualify for automatic citizenship depends on the child’s date of birth, the parent’s time spent in the U.S., and other factors. For more information on how to determine if you or your child are already U.S. citizens, please read more on our informational section here. [LINK TO US CITIZENSHIP]