Did you know that some people who are 21 and older can prevent themselves from"aging out" from an immigration petition if they qualify for relief under the Child Status Protection Act (CSPA)?
A person who is 21 yeard old or older is no longer considered a child for immigration purposes. This causes many people to "age out" or basically be kicked off from their permanent residency petition. If you age out, you have to file a new petition or application, wait even longer to get a green card, or may even no longer be eligible for a green card.
Since August 6, 2002, CSPA has been helping people who would otherwise be aged out of their immigration petition to freeze their age and retain green card eligibility.
CSPA provides methods of recalculating your age to see if you meet the definition of a child for immigration purposes. The new calculated age becomes your CSPA age which may allow you to remain classified as a child beyond your 21st birthday.
Unless otherwise stated, CSPA requires you to be unmarried to retain your child classification for immigration purposes.
CSPA applies to:
Immediate relatives
Family-sponsored preference principal applicants and derivative applicants
Violence Against Women Act (VAWA) self-petitioners and derivative applicants
Employment-based preference derivative applicants
Diversity Immigrant Visa (DV) derivative applicants
Derivative refugees
Derivative asylees
You are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status or one of the forms below was filed or pending on or after August 6, 2002:
CSPA "Seek to acquire" requirement:
If you meet the criteria above, you must also prove to USCIS (U.S. Citizenship and Immigration Services) that you sought to acquire permanent residence within one year of a visa becoming available to you (or your parent, if you are a derivative beneficiary).
The date that a visa became available to you means the first day of the first month a visa in the your designated category was listed as available in the U.S. Department of State’s visa bulletin. You can monitor the bulletin on a monthly basis.
CSPA for asylees:
If you are a derivative asylee, your CSPA age is your age on the date your principal asylee parent or Form I-730 petitioner filed his or her Form I-589. If you were under the age of 21 at the time your parent filed Form I-589, your age is frozen as of that date and you will not age out. You must be unmarried in order to qualify for a grant of derivative asylum and to qualify for a green card.
CSPA for immediate relatives or VAWA: If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. You must remain unmarried to qualify.
CSPA for K-2 nonimmigrants:
As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fiancé(e) of a U.S. citizen), you usually get a green card based on your admission into the U.S. with a K-2 visa and your K-1 parent’s marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the U.S. as a K-2 nonimmigrant, you will not age out. In these circumstances, you are not eligible for and do not need CSPA to get a green card.
You are only eligible for CSPA if you are the beneficiary of a Form I-130. In most cases, you do not need a Form I-130 to get a green card if you are a K-2 nonimmigrant. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days, your stepparent can file a Form I-130 for you. When that happens, you become an immediate relative who can use the CSPA when applying for a green card.
In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K‑1 nonimmigrant parent must have occurred before your 18th birthday. Since your age “freezes” on the date your stepparent files Form I-130, you may benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday.
Note: The reference to getting married within 90 days is a requirement for getting a green card based on K-1 and K-2 nonimmigrant status.
CSPA for K-4 nonimmigrants:
If you are a K-4 nonimmigrant, you are eligible for CSPA because you will apply for a green card as an immediate relative based on a Form I-130 filed by your U.S. citizen stepparent.
In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K‑3 nonimmigrant parent must have occurred before your 18th birthday. Since your age “freezes” on the date the Form I-130 is filed, you benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday.
CSPA for refugees: If you are a derivative refugee, your CSPA age is your age on the date your principal refugee parent or Form I-730 petitioner filed his or her Form I-590, which is the date of his or her interview with a USCIS (immigration) officer. If you were under the age of 21 at the time of your parent’s interview, your age is frozen as of that date and you will not age out. While you must be unmarried to qualify for admission into the U.S. as a derivative refugee, you do not need to remain unmarried to qualify for a green card.
CSPA for family and employment preference and Diversity Visa (DV) immigrants:
If you are in a family preference category such as F2 or F3, employment-based preference, or DV applicant, your CSPA age is calculated by subtracting the number of days your petition was pending from your age on the date an immigrant visa became available to you. You must remain unmarried to qualify.
If you fall into either of the three categories, the formula for calculating CSPA age is as follows: Age at Time of Visa Availability - Pending Time = CSPA Age
Visa availability refers to the first day of the first month a visa in your appropriate category was listed as available in the visa bulletin.
Pending time refers to the time it took USCIS to approve your petition. When USCIS approves/rejects your petition, it will send you Form I-797 Notice of Action. If your petition was approved, the date on this form will be your approval date. This is the date you use to calculate your CSPA age. The pending time is the difference between the date when you submitted your petition and the date in which USCIS approved your petition (the date on your Form I-797).
Example:
You are 21 years and 4 months old on the date that an immigrant visa becomes available to you. Your petition was pending for 6 months. Your CSPA age is calculated as 21 years and 4 months - 6 months = 20 years and 10 months
In this case, your CSPA age is less than 21, so you are not aged out, and you can maintain eligibility for your immigration benefit.
What happens if a lawful permanent resident (LPR) filed Form I-130 for his or her child or unmarried son or daughter, and naturalizes (becomes a U.S. citizen)?
If the petitioner naturalizes before the child or unmarried son or daughter gets a green card, the petition is converted to either an immediate relative or family first preference case.
If your LPR parent filed a Form I-130 for you as his or her child and then your parent became a U.S. citizen before you turned 21, your age “freezes” on the date your parent became a citizen. You become an immediate relative and will not age out.
The Patriot Act's Impact on CSPA:
If your petition was filed before September 11, 2001, then you can subtract an extra 45 days to your CSPA age.
Read more about CSPA: