The Child Status Protection Act (CSPA) – Complexity Continues

The Child Status Protection Act (CSPA) is a U.S. immigration law enacted in 2002 that provides certain protections for children who may age out during the green card process. The CSPA was enacted in response to a problem that had arisen in immigration law, where children were losing their eligibility for a green card as a dependent of their parent due to processing delays at U.S. Citizenship and Immigration Services (USCIS) and other agencies.

Under CSPA, in certain categories, the age of the child is “frozen” as of the date the I-485 (Application to Register Permanent Residence or Adjust Status) was filed, and the child’s eligibility for a green card is determined based on this “frozen” age.

Not everything is so simple however, CSPA is a complex law with extremely specific eligibility requirements. A determination of whether a child is eligible for CSPA protections can be difficult. In cases where a child has aged out, it is recommended to consult with an immigration attorney for guidance on the best course of action.

Chart of Child Status Protection Act Applicability

The following table generally outlines immigrant categories covered by CSPA, methods by which CSPA age is calculated, whether the “sought-to-acquire” requirement applies, and references to legal authorities.

Immigrant Category	CSPA Age Determination	Does “Sought to Acquire” Requirement Apply?	Legal Authorities and Additional Guidance
Derivative Refugees	CSPA age is frozen on the date the principal refugee parent’s Form I-590 is filed (the date of the parent’s interview with USCIS)	No	See INA 207(c)(2)(B) and INA 209(a)(1).See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)].
Derivative Asylees	CSPA age is frozen on the date the principal asylee parent’s Form I-589 is filed.	No	See INA 208(b)(3)(B).See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse of Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2 (C)(2)].
Immediate Relatives (including VAWA)	CSPA age is frozen on the date the Form I-130 is filed (or the Form I-360 is filed for VAWA self-petitioners and derivatives).	No	See INA 201(f).See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002.
Derivatives of Widow(er)s	CSPA age is frozen on the date the Form I-360 is filed or the date the Form I-130 is automatically converted to a widow(er)’s Form I-360.	No	See INA 201(f).
Family-Sponsored Preference Principals and Derivatives (including VAWA)	CSPA age is calculated by subtracting the number of days the Form I-130 (or Form I-360 for VAWA self-petitioners and derivatives) was pending from the applicant’s age on the date an immigrant visa becomes available to the applicant.	Yes. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available.	See INA 203(h).See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002.
Employment-Based Preference Derivatives	CSPA age is calculated by subtracting the number of days the petition was pending from the applicant’s age on the date an immigrant visa becomes available to the applicant.	Yes. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available.	See INA 203(h).
Diversity Immigrant Visa Derivatives	CSPA age is calculated by subtracting the number of days the petition was pending from the applicant’s age on the date an immigrant visa becomes available to the applicant.	Yes. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available.	See INA 203(h).

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The Child Status Protection Act (CSPA) can be a complex law to understand and apply. The law’s provisions are intricate and there are many factors that must be considered in determining eligibility for CSPA protections, such as the specific type of petition being filed, the date it was filed, the date of USCIS receipt, the date of USCIS approval, and the date of the consular interview, among others.

Additionally, the CSPA has been the subject of numerous court cases, and the interpretations of the law can vary depending on the jurisdiction. This has added to the complexity of the CSPA and made it more difficult for individuals to understand and navigate.

In light of these complexities, it is highly recommended that individuals seeking to apply for CSPA protections seek the guidance of an experienced immigration attorney. An attorney can help you navigate the complexities of the CSPA and ensure that your application for green card benefits is processed as efficiently and effectively as possible. Contact us, we are happy to set up a consultation and go over CSPA calculations with you.

U.S. Citizenship and Immigration Services has issued additional guidance on CSPA calculations in February, 2023

The US Citizenship and Immigration Services (USCIS) has updated its guidance for when an immigrant visa becomes available, which affects how a noncitizen’s age is calculated in certain situations under the Child Status Protection Act (CSPA).

The new guidance will also allow affected noncitizens to apply for employment and travel authorization based on their pending adjustment of status application. The USCIS will use the Dates for Filing chart instead of the Final Action Date chart to calculate ages for CSPA purposes. Noncitizens can file a motion to reopen their previously denied adjustment of status application with USCIS using Form I-290B.

USCIS guidance:

U.S. Citizenship and Immigration Services has issued guidance in the USCIS Policy Manual to update when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA).

For a child to obtain lawful permanent resident status in the United States based on their parent’s approved petition for a family-sponsored or employment-based visa, the child generally must be under the age of 21. If the child turns 21 and “ages out” during the immigration process, the child generally is no longer eligible to immigrate with the parent based on the parent’s petition.

Congress enacted the CSPA to protect certain noncitizen children from losing eligibility to obtain lawful permanent resident status based on an approved visa petition by providing a method to calculate the child’s age that considers when an immigrant visa number “becomes available.” The Department of State’s Visa Bulletin is used to determine when a visa number becomes available. The Visa Bulletin has two charts – the Dates for Filing chart and the Final Action Date chart. Under the previous CSPA guidance, USCIS considered a visa available for purposes of the CSPA age calculation based only on the Final Action Date chart, even if a noncitizen could apply for adjustment of status using the earlier date in the “Dates for Filing” chart.

This USCIS policy change is effective immediately and applies to pending applications. Therefore, some noncitizens with a pending application may now have a CSPA age that is under 21 based on this change. For example, between October and December of 2020, certain noncitizens were permitted to file their adjustment of status applications under the Dates for Filing chart of the Visa Bulletin. However, the Final Action Date chart never advanced sufficiently for their applications to be approved. These noncitizens filed their adjustment of status applications with the requisite fee without knowing whether the CSPA would benefit them.

Under this new guidance, USCIS will now use the Dates for Filing chart to calculate these noncitizens’ ages for CSPA purposes, which provides these noncitizens with more certainty about their eligibility to adjust status. If these noncitizens are eligible to adjust status because of the change in policy and they have filed for adjustment of status, they will also be eligible to apply for employment and travel authorization based on their pending adjustment of status application, and they generally will not lose previously issued employment or travel authorization.

Noncitizens may file a motion to reopen their previously denied adjustment of status application with USCIS by using Form I-290B, Notice of Appeal or Motion. Noncitizens must generally file motions to reopen within 30 days of the decision. For a motion filed more than 30 days after the denial, USCIS may, in its discretion, excuse the untimely filing of the motion if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.

This Policy Manual update will not prevent all children from aging out before an immigrant visa is available to them, nor will it prevent children from losing nonimmigrant status derived from their parents upon reaching the actual age of 21. USCIS continues to explore all options available under the law to aid this population. For example, the Department of Homeland Security regulatory agenda includes an anticipated notice of proposed rulemaking on improving the regulations governing adjustment of status to lawful permanent residence and related immigration benefits.

USCIS, February 14, 2023