The Child Status Protection Act (CSPA) is a United States federal law enacted in 2002 that addresses protection of the immigration status of children who might “age out” or become ineligible for certain immigration benefits due to delays in processing of their immigration petitions.
How CSPA affects children of U.S. citizens
The children of U.S. citizens can preserve their “immediate relative” status when their parents filed the I-130 petition. If they were immediate relatives (unmarried children under 21) on that date, they will still be considered immediate relatives even if they turn 21 before they obtain permanent residency.
In other words, as long as the U.S. citizen parent filed Form I-130 petition before the unmarried child turned 21, children will never “age out.”
However, if the child will marry before obtaining permanent residency, the child will convert to the third-preference category (F3) and will become subject to longer waiting time.
For example, at the time of writing this guide, the waiting period in the F3 category (married sons and daughters of U.S. citizens) was 14 years and longer. You can check the current U.S. Visa Bulletin waiting time for the F3 category here.
The married children of U.S. citizens can also benefit from the CSPA provisions.
If they divorce before turning 21, they convert to immediate relative status. This means that the visa number is readily available for them and they can apply for Adjustment of Status or Consular Processing immediately. Divorced children will preserve that status even if they turn 21 before immigrating. The date of the child’s marriage termination that controls the status. On the other hand, if they divorce after turning 21, the CSPA does not affect their status – they would still convert to the first-preference category (F1 – unmarried sons and daughters of US citizens over 21).
How CSPA affects children of green card holders and derivatives
If a permanent resident parent naturalizes, then their unmarried child under 21 will move to the “Immediate Relative” category. A naturalized permanent resident parent will need to file a separate Form I-130 to preserve the child’s new immediate relative status. Filing Form I-130 will ensure that the child will never “age out” even if the child will obtain permanent residency after the child’s 21th birthday. A child becoming an “immediate relative” means that the visa number is always available and there’s no need to wait until the priority date becomes current. Keep in mind that if the naturalized permanent resident’s child will marry, the child will move to the F3 category which has a long waiting line.
Under the CSPA, the child’s age will be reduced by the period of time the I-130 petition was pending for the following beneficiaries:
- Unmarried children under 21 of permanent residents (F2A category). Such children can preserve their F2A status only of they apply for permanent residency or immigrant visa within 1 year of visa availability.
- Derivative children in the family preference categories (F1, F3, F4).
To better understand this rule, let’s review some examples.
- Unmarried children under 21 of permanent residents (F2A category). A permanent resident Anna files a Form I-130 for her unmarried daughter Ileen who was 20 years old at the time of filing. It took USCIS 12 months to approve Anna’s Form I-130 petition. Priority date for category F2A is current and Ileen is eligible to apply for an immigrant visa. However, Ileen is already 21 years old at the time of Form I-130 approval and she converted to F2B category (unmarried children of permanent residents over 21 years of age). Despite Ileen turning 21, the Child Status Protection Act (CSPA) allows subtraction of the period of time that Form I-130 was pending. In Ileen’s case, I-130 was processed by USCIS for 12 months. So, under CSPA Ileen is allowed to subtract 12 months from her current biological age to determine her immigration category. At the time Form I-130 is approved and Ileen is eligible to apply for an immigrant visa, she is technically 20 years old and is allowed to keep her F2A category. Ileen must apply for Adjustment of Status (if in the US) or Consular Processing (if abroad) to stay in the F2A category. Keep in mind that if Ileen gets married before obtaining permanent residency, she will lose her F2A eligibility status.
- Derivative children in the family preference categories (F1, F3, F4). The same age-adjusting rule applies to derivative children – look at the date the Form I-130 is approved or the priority date becomes current if that is later. If the derivative beneficiary is under 21 when subtracting the time Form I-130 was pending, then they can keep their derivative status despite turning 21. For example, a U.S. citizen Peter filed Form I-130 to sponsor his married son Jacob, his married son’s wife Teresa and married son’s daughter Ashley. Ashley is a derivative beneficiary of the petition filed by her grandfather Peter. The F3 category for married sons and daughters of US citizens has a long waiting period before their priority dates become current. For example, as of writing this guide, the waiting period for F3 applicants is 14 years, 25 years for applicants born in Mexico and 21 years for applicants born in the Philippines. When Ashley turns 21, she will lose her derivative status and can immigrate to the US only if one of her parents immigrates to the US first and then separately files Form I-130 for her. But under the CSPA provisions, Ashley can subtract the amount of time Form I-130 was pending from her biological age on the date F3 category becomes current. This age is called “adjusted age”. If Ashley’s adjusted age is under 21 at the time F3 category becomes current, then Ashley can preserve her derivative status and MUST apply either for Adjustment of Status (if physically present in the US) or immigrant visa with the National Visa Center (if abroad). Failure to apply for immigrant status within 1 year since F3 category becomes current will lead to Ashley losing her derivative status preserved by the CSPA.
Relief for F-2B beneficiaries when the petitioner naturalizes
If a permanent resident parent who filed Form I-130 for their unmarried child over 21 years old (F2B category) naturalizes and becomes a US citizen, the child can choose if they want to convert to the F1 category (unmarried sons and daughters of US citizens over 21 years) or stay in the F2B category.
A child in these circumstances would choose to stay in the F2B category because the waiting line in the F1 category is typically longer than in the F2B category.
- For example, at the time of writing this guide, the waiting line in the F1 category was 9 years and 8 years in the F2B category.
The decision must be made on the basis of the most current Visa Bulletin. Since the Visa Bulletin gets updated every month, you need to carefully review the bulletin and decide which category you want to choose.
If you decide to stay in the F2B category, you must inform the appropriate agency in the written form:
- If you are in the U.S. and want to apply for Adjustment of Status, file a written request with your local USCIS district office that has jurisdiction over your physical residence. You can find the appropriate USCIS district office by entering your ZIP code here (scroll down to the bottom of the page, “Field Office Locator” search). In your written request, provide the petitioner’s name and date of birth, beneficiary’s name and date of birth, Form I-130 receipt number.
- If you are outside the U.S. and want to apply for Consular Processing, submit an online request with the National Visa Center (NVC) here.
- If the case is already at the U.S. Embassy or Consulate – ask the embassy or consulate to submit a request on your behalf.