Child Status Protection Act (CSPA) for Referred Children

18-05-2023

Signed into law on August 6, 2002, the Child Status Protection Act (CSPA), PL 107-208, 116 Stat. 927, INA 201 (8), addresses the problem of minor children who are over the age (turn 21 years old) due to long delays in procedures and long backlogs.

Allows certain beneficiaries in family-based, employment, and diversity petitions, as well as some humanitarian programs (refugees, nursing homes, Violence Against Women Act) to maintain “child” classification despite turning 21 years.

In the context of an employment-based petition, the CSPA allows the time that Form I-140, Immigrant Petition for Alien Workers, was pending to be subtracted from the beneficiary’s biological age at the time of visa availability. of immigrant on the date of approval of the same, whichever it is, it is late. INA 203(h)(3). Formula to determine the CSPA age of derived children: Section 3 of the CSPA provides the formula for determining the CSPA age of direct and derivative children who are beneficiaries of family and employment-based petitions, as follows:

1. Determine the age of the child at the time an immigrant visa number becomes available (the priority date of the LCA-exempt Form I-140 or labor certification application becomes current), or the date of approval of Form I-140, whichever is later;
2. Subtract from this biological age the number of days the Form I-140 Immigrant Visa Application was pending (from the date of receipt to the date of approval) to obtain the CSPA age; and
3. The child must “seek to acquire” lawful permanent resident (LPR) status (adjustment or immigrant visa) within one year of the approval of the I-140 petition or the availability of the immigrant visa, whichever is later late.

For example, if Form I-140 was filed in 2004, when the beneficiary’s derivative child was 19 years of age, and the Form I-140 LCA priority date was available at that time (2004), but the The Form I-140 petition was pending for 4 years, the child’s biological age after 4 years is 23, but his CSPA age is still 19. So, he or she has not aged.

In effect, the CSPA locks in the age of a child to a date earlier than their age at the time of adjudication of adjustment of status (Form I-485) in the United States or immigrant visa application (Form DS- 230 Left). Meaning of “seeks to acquire” LPR status: The third part of the formula for applying the CSPA to derivative children mentioned above is that the child must “seek to acquire” lawful permanent resident (LPR) status within one year of petition approval or availability. of the immigrant visa. , whichever is later, to get CSPA benefits.

The US Citizenship and Immigration Services (USCIS) defines the immigrant availability date as the first day of the first month that a visa in the appropriate category was listed as available in the Visa Bulletin. Visas from the Department of State.

As a statute of limitations, this one-year period within which to apply for LPR status, as a filing deadline, has been interpreted by the Department of State as follows:

1. The date the derivative child (not its father or mother) presents the completed immigrant visa application and alien registration (Form DS-230, Part I) and its scope in the immigrant visa system;
2. As to a “next-to-join” derivative child whose LPR parent is in the United States, the date the child seeks to acquire LPR status for the one-year filing window for the immigrant visa application is the date in which the father file Form I-824, Request for action on an approved application or petition, on behalf of the child (which can be filed with the parent’s I-485), or takes a “concrete step” forward toward LPR status. Cable DOS, 03 States 15049 (1/17/03) 4422.23.

For example, a Form I-140 petition was filed in 2000 by a parent’s employer when the derivative child was 20 years old. The Form I-140 petition was approved in 2002 and the immigrant visa number was current at the time of approval. The derivative child waited until 2004:

• To apply for adjustment of status (Form I-485) in the United States; gold
• Submit the completed Form DS-230 Part I for consular processing; gold
• Take “concrete steps” to seek LPR status; gold
• The father filed Form I-824 with USCIS in 2004 only.

In all four scenarios, the derivative child, even though CSPA age 20, is still ineligible for LPR status because he or she or his or her parents did not apply within one year of Petition I Approval -140 or the availability of the immigrant visa, both from 2002. The filing in 2004 was a year too late.