Child Status Protection Act: Aging-Out Protection Explained

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The 2002 Child Status Protection Act (CSPA) has had a dramatic impact on how family-based immigration cases involving children are adjudicated.  For the purposes of immigration benefits, a 'child' is defined as an individual who is unmarried and under the age of 21.  Classification as a 'child' is often crucial to immigration applications, as when an applicant can't be classified as a child, they often have to wait a significantly longer period of time to get a green card than they would if they were classified as a child.   

Prior to 2002, a family-based green card application had to be granted before the applicant's 21st birthday in order for the applicant to be considered a 'child' under immigration laws.  In practice, applicants would frequently 'age-out,' meaning that they would file an I-130 petition as a child, and then lose this designation as they endured lengthy delays in the processing of their petitions by USCIS.  Loss of this designation would slide applicants who were considered a 'child' of a U.S. citizen from the immediate preference category into the first preference category, and children of green card holders from the 2A preference category into the 2B preference category.   

The passage of the CSPA in 2002 has essentially solved the aging-out issue.  As applied to U.S. citizen petitioners, the law now locks in the age of the applicant at the time of filing the I-130 petition, as opposed to the age at the time of adjudication of the green card application.  For example, if a petition was filed on behalf of the 20 year old son of a U.S. citizen, he would maintain his position as an immediate preference relative regardless of how long USCIS took during processing.  The process is a bit more complicated for children of green card holders, as the age at the time of filing isn't necessarily locked in. The age that determines the applicant's preference category is calculated by subtracting the number of days the application was pending from the age of the applicant on the date the priority date became current. 

Another benefit of the CSPA is that it allows applicants to upgrade their classification.  For example, if a green card holder files a petition on behalf of their child, and the petitioner becomes a U.S. citizen during processing, the applicant is upgraded from the 2A preference category to the immediate relative category. 

An important note about the CSPA is that it locks in only the age of the applicant, and not marital status.  If an applicant gets married at any time during the processing of a petition or application, they will automatically lose their designation as a child.

If you are interested in obtaining a green card through family relation, please visit our website.

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This page contains a single entry by Jonathan Portner published on July 9, 2009 4:16 PM.

K Visas: Shortening the Waiting Period for Spouses of American Citizens was the previous entry in this blog.

Child Status Protection Act: Explaining Aging-Out Protection for Children of LPR's is the next entry in this blog.

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