CHILD STATUS PROTECTION ACT (CSPA)

The Child Status protection Act (CSPA) was adopted by Congress to address the problem of children who become ineligible (age-out, marry, et. al.) while a visa petition is pending. The CSPA preserves the ability of a child derivative beneficiary where aging out wa due to backlogs in the adjudication of visa petitions.

Determination of CSPA Coverage

The CSPA took effect on August 6, 2002, and is not retroactive. Therefore, in order to receive CSPA coverage, either

• the alien aged out on or after August 6, 2002;
• the petition for classification was pending on or after August 6, 2002; or
• the petition was aproved before August 6, 2002, with an adjustment on or before August 6, 2002, and no final determination was made prior to august 6, 2002.

The CSPA is calculated by subtracting the amount of time it took the Department of Homeland Security (DHS) to adjudicate the petition from the child's age at the time that visa numbers became available. If that number is less than 21 years, the person may proceed as if he or she still were a child.

 

CSPA APPLICABILITY

The CSPA applies to beneficiaries of immediate relative family petitions, derivative beneficiaries of family based preference petitions, derivative beneficiaries of employment based petitions, derivative beneficiaries of diversity visa applications, derivative beneficiaries of asylum applications, and derivative beneficiaries of refugee applications.

Where CSPA protection applies, the alien must file the adjustment of status or immigrant visa application within one year of visa availability.

 

INAPPLICABILITY OF CSPA

The CSPA

• does not apply to HRIFA, Family Unity, and Special Immigrant Juvenile beneficiaries and/or derivatives do not benefit from the provisions of the CSPA;
• does not allow for visa backlogs due to the over-subscribed immigration quotas that exist in many family based preference categories.

CSPA for Asylum and Refugee Cases

The spouse and unmarried child of an asylee may be granted asylum when accompanying or following to join the principal asylum applicant. If the child is under 21 years of age when the parent applied for asylum, the child will still be considered a child even if he or she turns 21 after the asylum application was filed but while it was pending. there is no requirement that the child have been included as a dependent on the principal applicant's asylum application at the time of filing - only that the child be included prior to adjudication. A principal asylum applicant may add to his or her asylum application a married son or daughter who is 21 years of age, but who was 20 at the time the principal applicant filed his or her asylum application.

The unmarried child of a parent granted admission as a refugee can accompany or follow to join his or her parent as a child if the child was under 21 years of age on the date on which his or her parent applied for immigrant status, even if the child attains 21 years of age after such application was filed but while it was open.

CSPA for Unmarried sons and Daughters of Naturalized Citizens

For a petition initially filed for an unmarried adult son or daughter of a lawful permanent resident (Family 2B preference category), if the lawful permanent resident parent naturalizes, such petition shall be converted to a petition to classify the unmarried son or duaghter as the unmarried son or daughter of a U.S. citizen (Family 1 preference category). This reclassification applies to any pending or approved petitions that were properly filed before the parent's naturalization.