USCIS Issues Revised
Guidance on the Applicability of the Child Status Protection
Act (CSPA)
By: Allen E. Kaye
The Child Status Protection Act (CSPA) amended
the Immigration Nationality Act by changing how an alien
is determined to be a child for purposes of immigrant classification.
The Act permits an applicant for certain benefits to retain
classification as a “child,” even if he or she
has reached the age of 21.
Since its enactment on Aug. 6, 2002, USCIS
provided several field guidance memoranda regarding the
adjudication of immigration benefits in accordance with
the CSPA. Today, USCIS has revised its guidance that modifies
a prior interpretation of certain provisions of the CSPA.
Questions & Answers
Q: What is the Child Status Protection
Act (CSPA)?
A: CSPA changes who can be considered to be a "child"
for the purpose of the issuance of visas by the Department
of State and for purposes of adjustment of status of aliens
by USCIS.
The Act provides that if you are a U.S. citizen
and you file a Petition for Alien Relative (Form I-130)
on behalf of your child before he or she turns 21, your
child will continue to be considered a child for immigration
purposes even if USCIS does not act on the petition before
your child turns 21. Children of lawful permanent residents
also benefit if a Form I-130 is filed on behalf of their
children (see below).
Q: Who benefits under the new CSPA
guidance?
A: The new guidance allows aliens who had an approved immigrant
visa petition prior to the enactment of the CSPA, but had
not yet applied for permanent residence (either an application
for adjustment of status or an immigrant visa) on the date
of enactment to benefit from the CSPA. Under prior guidance,
the CSPA did not apply to such applicants. The new guidance
includes many aliens who, subsequent to the enactment of
the CSPA, never filed an application for permanent residence
and aliens who filed an application for permanent residence
but such application was denied solely based on the applicant’s
age.
Q: Are there other considerations impacting eligibility
requirements?
A: Yes.
-
The new guidance does not include aliens
who, prior to Aug. 6, 2002 (date CSPA was enacted), had
a final decision on an application for permanent residence
based on the immigrant visa petition upon which the applicant
claimed to be a child.
-
If an alien filed an application for
permanent residence after the enactment of the CSPA, and
the application was denied, that denial must be ‘solely
based’ on a finding that the applicant was not a
child because the CSPA did not apply. An I-485 can be
denied for various reasons; if your I-485 denial was based
for a reason other than for CSPA, then this revised CSPA
guidance does not apply to you.
Finally, if you had an approved immigrant
visa petition before August 6, 2002, and did not file an
I-485 after the enactment of the CSPA, you could still benefit
if
-
you are filing as an immediate relative
or
- your visa became available on or after Aug. 7, 2001,
you did not apply for permanent residence within one year
of petition approval and your visa becoming available.
Q: How do I know if I was denied solely based on
CSPA?
A: The written denial decision you received from USCIS will
state the basis for the denial.
Q: Will it matter whether the child reaches the age of 21
before or after the enactment date of the CSPA to benefit
from this revised policy?
A: No, provided the applicant did not have a final decision
prior to Aug. 6, 2002 on an application for permanent residence
based on an immigrant visa petition upon which the applicant
claimed to be a child.
Q: Please explain the differences of benefit for an immigrant
petition filed by a U.S. citizen and a Lawful Permanent Resident.
A: Immigrant Petition as a child filed by a U.S. citizen:
- If the child is under the age of 21 on the date of the
filed immigrant petition, he/she will not ‘age out’.
He or she will be eligible for permanent residence as an
immediate relative, provided that no final decision was
reached prior to Aug. 6, 2002 on an application for permanent
residence based on the immigrant visa petition upon which
the applicant claimed to be a child.
Immigrant Petition as a child filed by a Lawful Permanent
Resident:
- If the immigrant petition was approved and the priority
date becomes current before the applicant’s ‘CSPA
age’ reaches 21, the child will not ‘age out’,
provided that no final decision was reached prior to Aug.
6, 2002 on an application for permanent residence based
on the immigrant visa petition upon which the applicant
claimed to be a child. In order for CSPA coverage to continue,
the child must apply for permanent residence within a one-year
of the date the priority date became current.
- Q: How do I calculate my ‘CSPA age’?
A: For preference category and derivative petitions, your
‘CSPA age’ is determined on the date that your
visa, or in the case of derivative beneficiaries, the principal
alien’s visa, becomes available. Your CSPA age is
the result of subtracting the number of days that your immigrant
visa petition was pending from your actual age on the date
that your visa becomes available. If your ‘CSPA age’
is under 21 after that calculation, you will remain a child
for purposes of the permanent residence application.
Q: If my child is a derivative of a petition filed
on my behalf, can my child benefit under CSPA?
A: Yes, so long as the child also meets CSPA eligibility
requirements previously discussed and applies for permanent
residence within one year of the priority date being current.
Q: If I was previously denied because of ‘aging
out’, can I file a motion to reopen or have my I-485
reconsidered? If so, is there a filing fee incurred?
A: Under the new policy, USCIS will accept, without a filing
fee, a motion to reopen or reconsider a denied I-485 application
if the following criteria are met:
- A visa petition was approved prior to Aug. 6, 2002 and
the I-485 was filed after Aug. 6, 2002;
- The applicant would have been considered under the age
of 21 under applicable CSPA rules;
- The applicant applied for permanent residence within one
year of visa availability; and
- The applicant received a denial solely because he or she
aged out.
Q: Is there a deadline for filing a motion to reconsider
my I-485 if the original was denied solely for ‘aging
out’? Where should I file the motion?
A: No deadline. Applicants should apply at their local USCIS
field office.
Q: I did not have an application for permanent residence
pending on Aug. 6, 2002 and did not subsequently apply for
permanent residence? Am I still eligible for CSPA coverage?
A: Yes, provided the applicant meets the following criteria:
- The applicant is applying for permanent residence as an
immediate relative; or
- The applicant’s visa became available on or after
Aug. 7, 2001; and
The applicant did not apply for permanent residence within
one year of the petition approval and visa availability,
but would have qualified for CSPA coverage.
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