The Child Status Protection Act (CSPA) addresses the significant issue of “aging out” that many foreign national children faced in the United States immigration system. The term “child” is specifically defined in immigration laws as a person who is both unmarried and under 21 years old. Unfortunately, the long waiting times to bring a foreign national child to the United States often result in the child turning 21 before they can complete their immigration process. In such cases, if a child has applied for lawful permanent resident status, commonly referred to as obtaining a Green Card, and they turn 21 before their application is approved, they can no longer be categorized as a child for immigration purposes. Consequently, they may lose their eligibility for a Green Card. This situation is commonly known as “aging out.”
Recognizing the significant number of children who were aging out due to extensive processing backlogs at USCIS, Congress enacted the CSPA to safeguard specific children from aging out. The primary purpose of the CSPA is to ensure that children can continue their immigration journey to the United States alongside their parents.
Prior to CSPA, when a child reached the age of 21, they would “age out” and could no longer immigrate or adjust status with their family. However, with the enactment of the CSPA, this issue was addressed by effectively “freezing the age” of immediate relative children when a petitioning parent submits a visa petition on their behalf. This means that the child’s age is calculated in a way that allows them to maintain their status as a child for immigration purposes, even if they have turned 21. CSPA uses a mathematical formula to preserve their age as under 21, regardless of their actual age. The specific method for calculating a child’s age under CSPA varies depending on the type of immigration benefit being sought. This approach to age calculation ensures that children can continue to benefit from immigration benefits despite potential delays in processing of their applications.
It is important to note that CSPA only applies to:
- Derivative beneficiaries of family-based, employment-based, and diversity visas
- Derivative asylees and refugees
- Immediate relatives (including derivatives of widow(er)s)
- Violence Against Women Act (VAWA) self-petitioners and derivative applicants
CSPA calculates a child’s age by subtracting the number of days their petition has been pending from their age on the date when an immigrant visa becomes available to them. However, it is essential to note that to be eligible for a visa under CSPA, the individual must still meet the requirement of remaining unmarried because CSPA does not alter the definition of a child. Therefore, while CSPA allows for the adjustment of age for immigration purposes, it does not change the fundamental definition of a child.
The formula for calculating CSPA age is as follows:
- Age at time of visa availability – Pending time = CSPA Age
For example, you are 22 years and 5 months old when an immigrant visa becomes available to you. Your petition was pending for 1 year and 6 months. Your CSPA age is calculated as follows:
- 22 years and 5 months – 1 year and 6 months = 20 years and 11 months
Calculating the CSPA age can be a complex process, and therefore, it is highly advisable to work with an experienced immigration attorney. They can assist you in obtaining your green card status, guide you through the U.S. citizenship process, and help you accurately calculate the CSPA age.
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