Are you worried that your child will turn 21 years old before the United States Citizenship and Immigration Services (USCIS) approves your application for lawful permanent residency (LPR) status? Worry no more because, in 2002, the Child Status Protection Act (CSPA) was enacted to freeze the age of applicants who turn 21 before obtaining a green card due to delays by processing agencies. So, if you believe your minor is eligible for CSPA, speak to understand how the Act will help your child’s case or reopen an application that was previously denied.
CSPA at a Glance
A child under the Immigration and Nationality Act is any unmarried individual younger than 21. When you want to legalize your child’s stay in the country, you apply for a green card on their behalf before they become adults. The child becomes ineligible for LPR status under the immediate relative category when they turn 21 before application approval. Therefore, when you apply for your minor’s green card but age out before application approval, the party is no longer a child before immigration laws. Thus, the person must apply afresh, wait longer for approval, or be dismissed. This was the norm before 2002.
Luckily, the US Congress realized that many applicants would turn 21 before LPR status approval even after applying early because of administrative delays by the Department of State (DOS) and USCIS. So, Congress enacted CSPA to put an age freeze on children who turned 21 before status adjustment.
The 2002 Act did not change the definition of a child under the immigration status. The Act only provided guidance on an applicant's age calculation to establish if an applicant is still a child under immigration law even after turning 21. That way, a person older than 21 can still be considered a child under immigration statutes.
In 2023, USCIS updated its policy manual on CSPA age calculation for aliens pursuing LPR statutes. As a result, any party previously denied an application because of age but believes under the new guidance they are younger than 21 and therefore eligible for status adjustment can appeal the decision and have their case reopened using Form I-290B.
CSPA Use in Bringing an Immediate Relative to America
Immigration statutes allow American citizens who want to reunite their immediate family but cannot because they reside and work in America to sponsor them to secure LPR status. The status, also called a green card, allows the American citizen to support and give their immediate relatives a chance to live in America. The eligible relatives include spouses, unmarried children younger than 21, and parents or guardians. The US has no statutory limit on family-based immigrant visas, which the USCIS and DOS can issue annually. Therefore, there are no lengthy waiting periods before card approval, as there are no administrative delays.
Before CSPA, you had to complete I-130 early enough before the child turns 21 because if they age out before petition approval, their petition would be denied or delayed after they are moved to a preference category. Sadly, with the lengthy administrative processes involved in USCIS, many applicants aged out and became ineligible.
Nonetheless, with CSPA, if you submit the child’s I-130 a day before their 21st birthday, they will still qualify as children for immigration purposes, even if they become adults before the petition’s approval.
CSPA’s Strategy on I-130 Petitions
You can avoid lengthy waits for green card processing by petitioning USCIS to grant your immediate relative younger than 21 and unmarried LPR status. Doing so means your alien relative will not wait for the immigration visa availability, which takes years.
Your child ceases to be an immediate relative under the immigration statutes if they marry before status adjustment, even if they are still underage. The marriage means the relative must wait for visa availability under the preference relative category, not the immediate relative. They will wait for years before applying for a visa or LPR status.
The Process of Submitting a Petition for an Immediate Relative
The children for whom you can apply for a green card on behalf under F I-130 include:
- Innate-born children whose biological parents are married
- Children who are naturally born by unmarried parents. However, if you are the child's father, you must submit proof that you have a genuine relationship with the child’s parent.
- Stepchildren below eighteen years old if parents are in a marital relationship
You should know that you can even sponsor a green card for an adoptee, but if they were 16 or younger at the adoption time and you followed all the processes provided. Nonetheless, the petitioning process is different. Speak to your immigration attorney to understand the process you can follow to sponsor the adopted child.
Another condition a child must satisfy is to be unmarried and younger than 21 during the application and when receiving the LPR status. However, with CSPA, children who come of age before receiving their LPR status are still eligible for the petition.
When the child you are petitioning for is in the country unlawfully, their presence is unlawful, and it could lead to inadmissibility and disqualification from seeking LPR.
Similarly, approving a child’s green card petition will not resolve the problem of illegal presence. Therefore, speak to an immigration lawyer if your immediate relative is in the country illegally or their visa has expired.
Before you can petition for LPR, you must check to ensure that your alien child is already an American citizen. Alien children of U.S. citizens can qualify for citizenship automatically, so you should check if your immediate relative is already a citizen before petitioning.
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Length of the Immigration Process
The duration it takes for the approval of your I-130 petition varies. An unmarried child younger than 21 is an immediate relative and qualifies for LPR immediately after you complete the application. This is the case for parents who are American citizens.
Nevertheless, when you, the parent of an unmarried, 21, or younger child, are a legal permanent residence or green card holder, the immigration statutes categorize your child as a second preference relative. There are only 87,000 LPR status applications for applicants under this section, with hundreds of thousands seeking visas. Therefore, your child will wait years before obtaining a visa under these circumstances.
You must know that the approval of your I-130 petition does not give the child any rights to reside in the country. Nevertheless, when you are an American citizen and your beneficiary is in the country, you can simultaneously complete the I-130 and apply for the minor’s LPR status. The LPR status application allows the child to be present in the US. before the I-130 petition is approved lawfully. However, green card parents cannot file an I-130 and a green card PETITION simultaneously.
When your immediate relative lives outside the US, they cannot join you immediately because you have filed an I-130 petition or it has been approved. The child will require an immigrant visa to relocate to the US legally.
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I-130 Supporting Documents
Copies of your birth certificate, naturalization certificate, passport, and FS-20 must accompany the signed I-130.
Additionally, you should present evidence to support the child-parent relationship. The child’s birth certificate mentioning you as a parent is sufficient to prove the relationship. A marriage certificate is necessary for fathers to demonstrate they were or are married to the child’s biological mother. Where a child is born out of wedlock, you must show a bona fide or genuine relationship exists between you and the minor.
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After Submitting I-130
USCIS will send you a notice informing you they have received your petition. The notice will have a receipt number in the upper left corner. You will need the number to track the application status.
The approval process takes anywhere from months to years. When the agency approves your petition, you will receive a notice of approval through mail. Ensure you forward this to the National Visa Center (NVC), who will communicate with the child the day they are scheduled for an interview in the American consulate of their country.
However, if the beneficiary is in the country and you were only seeking a status adjustment through the petition, the approval notice will not require additional processing. If you did not pair the I-130 petition with that of status adjustment, the child will be scheduled for an interview with NVC, then complete I-485 for status adjustment.
Lastly, when USCIS rejects your I-130 petition, they will notify you of the denial. The best action to take after a denial is to consult with an attorney to evaluate the notice and establish the reasons for the unfavorable verdict. Once you identify the mistakes that led to the decision, the attorney can help you reapply this time, avoiding the mistakes you made previously.
A Green Card Holder Converting their Child’s Petition to Immediate Relative After Naturalization
What happens if you are not an American citizen but a permanent resident with a foreign-born child? Sadly, CSPA does not deem these children immediate relatives. Usually, when applying for a green card and you have children whom you want to join you, you must show that there is a family relationship in your petition and include them as derivatives. Luckily, some alien children are almost automatically included if you name them as derivatives in your LPR petition.
CSPA Protection for Derivative Beneficiaries and Family-Based Preference Relatives
Before 2002, when CSPA was adopted, it was a nightmare for parents whose children turned 21 before the approval of their family-based visas, as the beneficiary would be disqualified or moved to a category where the visa wait was longer. Green card waits for persons 21 or older are long because of the limited annual numbers.
Nonetheless, after CSPA took effect, the child’s age when the parent submitted their petition to USCIS is considered.
Effects of CSPA on I-130 Filed by Green Card Holders
When you are a LPR status holder and mentioned your child 21 or younger and unmarried as a derivative during your green card petition or the child overstayed outside the US, losing their permanent residency status, you can sponsor their green card through the preference group F2A in I-130. Before CSPA, children who became adults for immigration law purposes before visa approval were automatically moved to the F2B category, meaning a more extended wait for the green card, even if the party seeking benefits is not responsible.
Post-CSPA, your application is protected if you seek it within twelve months of the visa availability using I-824. If the child is in the US, you should fill out I-485 for status adjustment or permanent residency registration. Visa availability in these categories depends on the filing date.
Status adjustment is when a person already resides in the US but wants to enjoy the benefits and protection of being a permanent resident. If you are one of these people seeking a status change, do not wait until the filing date that appears on the final action date of the bulletin if you do not want to leave the country and attend the interview at the American consulate in your mother country. Instead, visit the USCIS web page on the petition filing date page and submit your petition early before the visas are available. The clock starts ticking when you submit your application, so you must petition for permanent residency within twelve months of the application.
The priority or filing date refers to the date USCIS received your petition. If you do your calculations using the date, you can tell if your child’s petition will be approved before they age out. If the petition is granted and the filing date is updated before your beneficiary ages out, you are eligible for CSPA protection.
What happens if the minor turns 21 before approval or when the filing date is updated? Will the beneficiary enjoy CSPA protection? Sadly, you must stay updated with the Visa Bulletin to see if the priority or filing date is current.
For instance, your natural-born alien child was born in September 2002, and due to the date you filed the petition, the child’s priority date is November 2020 under category 2A. Unfortunately, due to administrative delays by USCIS, the visa became available in May 2024. If the visa had been available as indicated on the filing date, the child would have been eligible as they would be younger than 21.
Nevertheless, because of the delays, the filing date becomes current after they have turned 21. Under the circumstances, you must subtract the days the visa was delayed from the child's age when the visa was made available. From the calculations, the beneficiary will still be a child under CSPA.
CSPA Effects on Child Derivative Beneficiaries
CSPA safeguards children of beneficiaries of family-based immigrant visas, ensuring they are included as derivatives in their parent’s application when, in the past, they would be aged out and therefore ineligible.
Even if you cannot include your child in category F2A, all is not lost. They will fall back to category 2B, which has a longer wait, although their applications will be prioritized.
Possibilities When the American Citizen’s Child is Widowed or Separated from their Spouse
Even if you are an American citizen and your child is married but younger than 21, CSPA does not consider them an immediate relative. The child will be processed under the preference category. Nevertheless, when the child legally separated from their spouse before age 21, you can convert the petition to the immediate relative category by informing USCIS of the divorce. When the child’s category changes to an immediate relative, their visa will be available, and they do not have to wait like they would under the preference category.
For instance, you have a 19-year-old daughter who is married, but you want to sponsor them to become a permanent resident. When you submit a petition under the circumstances, they will be placed under the preference category, meaning they must wait for a decade or two before their visa is available. After one year, your daughter terminates her marriage with the husband and obtains a divorce decree.
Under the circumstances, you should speak to an immigration visa attorney to determine if the child still counts as an immediate relative under CSPA and whether you can benefit from the Act. CSPA age freeze can help you in this situation. Send a copy of the divorce decree to USCIS to show them that your child is now unmarried and qualifies as an immediate relative. The same will apply if the daughter becomes widowed. Therefore, she ceases to be married and an immediate relative for immigration purposes.
Listing derivatives during a green card petition could have them secure automatic U.S. citizenship. Unfortunately for your child, even if they include derivatives in the country when they do not want to leave a child from their previous marriage behind, they cannot if you convert the petition from the preference category to immediate relative.
Find a Reliable Immigration Attorney Near Me
When you have been naturalized and want to reunite with your child abroad, you will be worried about their chances of immigrating, especially if they could turn 21 before USCIS approves your petition. However, you do not have to worry because you enjoy protection under CSPA even if the child turns 21. Talk to an experienced immigration attorney to evaluate your case and get advice on the action you should take. At the California Immigration Attorney, we can help take advantage of CSPA to reunite with your family. Call us at 424-789-8809 for a free consultation.