Enacted August 6, 2002, The Child Status Protection Act (CSPA) changes the definition of "child" for purposes of determining immigration benefits, and protects many sons and daughters of US citizens and permanent residents from losing these benefits when they turn 21 (also known as "aging out").

Aging-out refers to a beneficiary losing immigration benefits upon turning 21. For example, an "aging out" beneficiary of an I-130 filed by US citizen is automatically transferred from the "immediate relative" classification to the "Family First" preference classification. Likewise, an "aging out" beneficiary of an I-130 filed by a permanent resident is automatically transferred from the "Family 2A" preference classification, to the "Family 2B" classification. The affects change in classification has an profound impact on when, and even if, that beneficiary may immigrate to the U.S.

Under prior law, when a beneficiary of a Petition for Alien Relative (Form I-130) to turned 21 prior to a grant of adjustment of status or an immigrant visa admission into the U.S., that beneficiary would be automatically transferred to a different classification of relative, without regard to processing delays.

The CSPA amends the law in one important respect. It factors in processing delays in determining when an I-130 beneficiary ages out.

There are different applications of the law, depending upon the immigration status of the I-130 petitioner (i.e., the beneficiary's parent).

The beneficiary of an I-130 filed by his/her U.S. citizen parent prior to the beneficiary's 21st birthday will continue to be considered a child for immigration purposes even if the USCIS does not act on the petition before the child turns 21.

The beneficiary of an I-130 filed by his/her permanent resident parent prior to the beneficiary's 21st birthday will preserve his/her classification according to the following formula: the beneficiary's age is determined by taking his/her age at the time the priority date is current (or the I-130 is approved whichever is later), and subtracting the number of days the I-130 was pending. In addition, the beneficiary must seek to acquire the status of a lawful permanent resident within one year of visa availability. (This provision also applies to derivative beneficiaries on family-based and employment-based petitions.)

For a more detailed explanation of the CSPA, a good source is H.R. 1209 – The Child Status Protection Act, August 7, 2002, and The Child Status Protection Act, September 20, 2002.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.