The Child Status Protection Act, [hereinafter “CSPA”] has been the focus of Immigration for some time. Originally the CSPA was enacted in August 6, 2002 to allow children who turned twenty one (21) years old to still be considered as minor children so that they could immediately apply for permanent residence.
In order to understand the implications of the recent changes to the CSPA we must first define some key immigration terms. Under Immigration law the definition of a child is very different from the public’s understanding of a child. Pursuant to Immigration law a child is defined as a person under 21 years of age who is a 1) Child born in wedlock, 2) Step-Child, whether legitimate or not as long as child was under eighteen (18) years at the time the step-parent relationship was created, 3) Child legally legitimated if in custody of father at time of legitimization, 4) Adopted children under sixteen (16) years old, having two (2) years of legal custody and residence with adopting parents. However, if the family has already adopted a sibling the second brother or sister who is adopted may be under eighteen (18) years at time of adoption and 5) certain orphans. It appears that Immigration’s definition of child is both inclusive and restrictive. However, for the purpose of this article, we will concentrate solely on the first category that defines a child as a person under twenty one (21) years old.
The second definition that is equally important is Immigration’s definition of the term “aged out.” As the term implies, Immigration defines the term “aged out” as a child who has turned twenty one (21) years old and therefore the child is no longer considered to be a minor child but an adult daughter or son. The distinction between a minor child and an adult daughter or son is significant because it directly affects whether or not an individual is eligible to immediately apply for permanent residence or if that person has to wait years to apply for permanent residence. Under immigration law categories such as child, adult daughter or son are important because Immigration determines eligibility of applicants according to their specific category. As such, prior to August 6, 2002, if a child aged out then he/she would be ineligible to obtain their permanent residence. For example a United States citizen or Permanent Resident, (LPR), may have submitted an I-130 petition for his wife and two minor daughters. At the initial filing of the paperwork the Petitioner’s daughters were under twenty one (21) years old and therefore they were considered to be minor children. However, if once the applications were approved the daughters were now twenty one (21) years old the daughters would now be placed in a separate category of adult daughters that would impede their ability to obtain their permanent residence at the same time that their mother received her status. The waiting time for the daughters could take years or decades depending on their county of origin. Consequently, we have the very unfair scenario where the mother and father now have legal status and their daughters had no status. This situation was especially frustrating when the main reason why the daughters turned twenty one (21) years old before their approval was due to Immigration’s inability to efficiently process applications in a timely fashion. Hence, the CSPA was designed to alleviate this unfortunate situation.
First, under the 2002 CSPA regulations, children of United States citizens who aged out i.e., became adult children, were forced to apply for permanent residence as adult children. As such, these adult children would have to wait a much longer time in order to apply for permanent residence. However, under the 2008 revisions to the CSPA, minor children of United States citizens who turned twenty one (21) years old are now eligible to apply for permanent residence as minor children as long as they have an approved I-130 petition and they did not receive a final decision on an application for permanent residence or an immigrant visa before August 6, 2002.
Under the 2002 CSPA regulations, children of permanent residents, (LPR), who aged out i.e., became adult children after August 6, 2002 or whose I-130 petition was approved after August 6, 2002 or whose priority date became available after August 6, 2002, were still able to apply for permanent residence as minor children based on a mathematical formulae. Based on the mathematical formula if the child’s adjusted age was under twenty one (21) years old, the child could still apply for permanent residence as long he/she applied within one (1 ) year of his/her priority date becoming current. If the child adjusted age was under twenty one (21) years old but he/she failed to apply for permanent residence within one (1) year then he/she would no longer be eligible to apply for permanent residence as a minor child. As such, he/she would have to wait and then apply for permanent residence as an adult child. However, under the 2008 revisions to CSPA, these adult children are now immediately eligible to apply for permanent residence as long as their adjusted age is under twenty one (21) years old and they never applied for permanent residence.
There are many other amendments to the CSPA that may be beneficial to applicants. However, the amendments are too detailed and complex to discuss in this article. The important thing to remember is that the new amendments to the CSPA are significant because you may be immediately eligible to apply for permanent residence today instead of years later. In order to receive a complimentary analysis of your case, please send your inquiries to my office at .
Safiya Byars is a senior immigration attorney in Norcross, Georgia. She is a native of Jamaica and has personal experience with the difficulties of maneuvering the Immigration system. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. To discuss your case, please contact Attorney Byars at 404-992-6506 or via email.