Aging Out and Immigration Benefits:
What You Need to Know about the Child Status Protection Act
March 21, 2012
Hosted by:Murali Bashyam and Rashmi Shah
Bashyam Spiro LLPwww.bashyamspiro.com
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Outline
• “Aging Out”—what is it?• Law Prior to Aug. 6, 2002• Current Law: Child Status Protection Act• Application of CSPA
Children of US Citizens• Application of CSPA
Family-based Preference Categories Employment-based Preference Categories
Today’s Dialogue Map…
Aging Out
• Certain immigration benefits are only available to those individuals who qualify as a “child” as defined in the Immigration and Nationality Act.
• The definition of child includes those classified as being under the age of 21.
• When an individual is no longer classified as a child, he or she “ages out”.
• Aging out results in the child being completely left out of the green card process or being automatically moved into a much slower category.
Prior Law
Law Prior to August 6, 2002: – Adjustment of Status Process: If the Immigration
Service did not adjust the child’s status before the child turned 21 years old, then the child aged out.
– Immigrant Visa Process: If the child did not enter the US with an immigrant visa prior to his or her 21st birthday, then the child aged out.
Standard practice under prior law: Expedited Processing Requests—often requested through a congressional office because of difficulties in communicating directly with INS.
Current Law
Child Status Protection Act “CSPA”• Enacted on August 6, 2002• Allows a beneficiary to retain classification as a
child after reaching the age of 21, if certain requirements are met.
• Changed the way determinations are made as to whether an individual qualifies as a “child”
Most Common Beneficiaries Eligible for CSPA• Children of US Citizens• Children of Permanent Residents• Derivative Beneficiaries of Family-based and
Employment-based preference petitionsExamples of Preference Petitions:
US Citizen who has filed for sibling– sibling’s children allowed to immigrate as long as they meet definition of a child.
Foreign Employee who is being sponsored by Employer—children are allowed to immigrate as long as they meet definition of a child.
Beneficiaries Eligible for CSPA
Children Under 21 of US Citizens—Under prior law, child would have moved into a much slower
category upon reaching 21.
Result under CSPA: I-130 Immediate Relative Petition must be filed before child turns 21. If so, child’s age is frozen on the date the I-130 petition is properly filed.
Doesn’t matter how long the petition process takes, child will still be considered under 21 until final adjudication of adjustment of status/immigrant visa application.
If
Children of Permanent Residents who Naturalize.Under prior law, child would have moved into a much slower
category upon reaching 21.
Result under CSPA: • The beneficiary’s age is his/her age on the date the lawful
permanent resident parent becomes a naturalized U.S. citizen.
• If the beneficiary is under the age of 21 when the petitioner naturalizes, petition is automatically converted to an immediate relative petition, with beneficiary’s age frozen under 21.
Other Preference Categories Must Apply Formula:
CSPA Age Formula (Step 1 of 3)
1. Determine the age of the beneficiary on the date that a visa number becomes available.
The date the visa became available is defined as the first day of the first month the priority date is current in Department of State’s visa bulletin or the date the petition was approved, whichever is later.
CSPA Age Formula
CSPA Step 2 of 3
CSPA Age Formula (Step 2 of 3)
2. Subtract the number of days the petition was pending from the alien’s age at the time of visa availability.
This is the beneficiary’s CSPA age.
CSPA Step 3 of 3
CSPA Age Formula (Step 3 of 3)
3. The beneficiary will retain his or her CSPA age so long as he seeks to acquire lawful permanent resident status within one year of the visa availability by one of the following methods:– filing Form I-485, or– submitting Form DS-230, or– the principal filing Form I-824 on the derivative’s behalf.
NOTE: If the preference petition is approved and the priority date becomes current before the alien’s CSPA age reaches 21, then a one-year period begins during which the alien must seek to acquire permanent residence for CSPA coverage to continue.
Application of CSPA and Visa Regression
• When an individual files for adjustment of status and the visa subsequently regresses: The individual has locked in his “CSPA” age. USCIS will hold the I-485 until the visa becomes available again and then adjudicate it.
• When a visa becomes available and the beneficiary fails to seek to acquire within one year and the visa regresses after that one year has lapsed:The beneficiary is ineligible for CSPA age-out relief, since the regression did not affect their ability to meet the seek to acquire requirement.
• When a visa becomes available, but regresses before one year has lapsed: USCIS currently restarts the one year clock the next time a visa becomes available. The caveat is that USCIS does the age calculation based on the new visa availability date, so it is in a beneficiary’s best interest to seek to acquire as soon as possible when it comes to CSPA age-out. The same can occur multiple times, as long as the visa was never available for a full year.
Visa Regression
CSPA does not apply…
In addition to a few other categories, CSPA does not apply to nonimmigrant visa holders or applicants.
Example:CSPA does not apply to children in H-4 status. Children in H-4 status age out when they turn 21 years old. H-4 children in college typically file an application to change to student status in order to maintain valid immigration status.
Family-based CSPA example:
Is Hema protected from aging out under CSPA?Raj is a Permanent Resident. His daughter Hema was born on Feb. 3, 1983. He filed an I-130 petition for her on May 12, 1999. The I-130 was approved on January 6, 2003. On Feb. 3, 2004, Hema turned 21, potentially aging into a much slower category. The first day that a visa was available in her original category was August 2, 2005. However, Hema’s I-485 was not filed until September 29, 2006. What result?
CSPA FormulaStep 1 of 3: Determine Hema’s age on the date visa was
available, which was August 2, 2005. Hema was 22y 5m 29d on this date.
Step 2 of 3: Subtract the number of days the I-130 was pending from the beneficiary’s age at the time of visa availability. 22y 5m 29d minus 3y 7m 24d equals 18y 10m 5d. 18y 10m 5d is Hema’s age for purposes of the CSPA.
Family-based CSPA example
Step 3 of 3: Did Hema seek to aquire permanent residency within 1 year of visa availability? No. She filed her application more than 1 year after a visa was available.
Answer: Hema is not protected from aging out under the CSPA.
Employment-based CSPA example
Is Suresh protected from aging out under CSPA?Pradeep’s employer filed a labor certification application for him on June 30, 2009, thereby establishing Pradeep’s priority date. The labor certification application was quickly certified by the Dept. of Labor. On December 1, 2009, Pradeep’s employer filed Form I-140, Immigrant Petition for Alien Worker. At Pradeep’s request, the employer paid an extra fee to have the I-140 premium processed in 15 business days. On December 11, 2009, the I-140 was approved. Pradeep’s priority date was not current; therefore, he was unable to file for adjustment of status at that time. On March 1, 2012, Pradeep’s priority date became current. Pradeep’s son, Suresh turned 21 on Feb. 10, 2012.
Step 1 of 3: Determine Suresh’s age on the first day that a visa was available. Suresh was 21 y 0 m 20 days on March 1, 2012—the 1st day a visa was available.
Employment-based CSPA example
Step 2 of 3: Subtract the number of days the I-140 was pending from Suresh’s age at the time a visa number became available. 21 y 0 m 20 days minus 10 days equals 21 y 0 m 10 days.
ANSWER: AFTER APPLYING THE CSPA FORMULA, SURESH’S AGE IS STILL OVER 21.
HE IS NOT PROTECTED. STEP 3 is NOT NECESSARY.
Note regarding premium processing: In this example, filing the I-140 petition under premium processing was a
mistake. Had the I-140 been filed regular processing, most likely it would have taken USCIS several months to issue the approval—which would have given Suresh the extra days of pendency needed to be protected under CSPA.
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