What is the Child Status Protection Act (CSPA)?
The Child Status Protection Act of 2002 (CSPA) is a law that modifies who can be considered a “child” for immigration purposes. Ordinarily, the USCIS considers a child to be “an unmarried person under the age of 21.” Simply put, CSPA allows children of immigrants to keep their “child” status past the age of 21 under certain circumstances.
As you will likely find, immigration is slow work. It can take weeks, months, and sometimes years for USCIS to process petitions, applications, or any other document submitted to them. Before CSPA, if a child reached 21 while their petition was pending, they would “age out” and get bumped down to a lower preference category. CSPA prevents this in certain circumstances, and for good reason: maintaining child status has a massive impact on how soon you can immigrate.
- Children of US citizens are categorized as immediate relatives (IR), which means that they are not subject to any annual immigration quotas. IRs are allowed, in a sense, to “cut to the front of the line” when their I-130 is approved.
- But ageing out means… being knocked down to preference category F1, which is capped at 23,400 entrants per year.
- Children of permanent residents are placed in preference category F2, which is capped 114,200 immigrants per year – but if their parent becomes a citizen while their I-130 is pending, they can be bumped up to IR and jump the line as well.
- But ageing out means… staying in F2 with no possibility of being bumped up to IR.
In either case, ageing out can mean a long, long wait. Enter CSPA.
Can CSPA Help Me?
Maybe. CSPA will not always preserve a potential immigrant’s status as a child – it does not cover everybody, and even for those who do fall within its scope, it may not help if things aren’t done according to the proper timeline. In order to be eligible under CSPA, you must:
- Be the beneficiary of pending or approved visa petition that was filed on or after August 6th, 2002.
- Not have had a final decision on any application or status adjustment prior to August 6th, 2002.
- Seek to acquire permanent residency within one year of when your visa became available. This means that within one year your parent must either file an I-824 for you, or you must file your own I-485. You can also file a DS-230 (“Application for Immigrant Visa and Alien Registration”) from the Department of the State, although this isn’t as common.
- A visa is considered “available” on:
- The first day of the first month that it is listed as available the Department of the State’s visa bulletin; or
- The date the petition for the visa is approved – whichever is later.
- A visa is considered “available” on:
Note: CSPA does not apply to children of non-immigrant parents, such as parents who entered the country on a K-1 fiancé visa).
Rolling Back the Clock: Determining Your “CSPA Age”
After you file your petition, you will have to wait for it to be approved. After approval, you’ll have to check the visa bulletin to find out when your visa is available.
Under CSPA, the time that your petition was pending approval will be subtracted from your biological age at the time your visa became available to determine your “CSPA age.” If it works out that this number is less than 21, you’re in the clear.
CSPA also allows your age to be “frozen” on a certain date, which varies depending on the status of your parent.
If Your Parent is a Citizen
Children of citizens are granted superior protection of their child status compared to permanent residents. When your parent files your I-130 petition, your age is “frozen” on the date of filing. As long as you do not marry before immigrating, you will remain a child in the eyes of USCIS, and crucially, still be an immediate relative.
Note: Getting married will knock you down to F3, which is capped at 23,400. CSPA can’t help you here.
If Your Parent is a Permanent Resident
Now this is a bit trickier. CSPA will not apply if your parent remains a permanent resident and does not become a citizen. However, if your parent files your I-130 and then later becomes naturalized, your age will be “frozen” on the date of your parent’s naturalization. As long as this date is before your 21st birthday, you will get to keep your child status after turning 21.
You will then automatically be bumped up from F2 to IR, which is a very good thing.
Note: There is no visa category for married sons or daughters of permanent residents. Getting married will negate all of the protections CSPA can offer you – so choose wisely when to wed.
In very limited circumstances, it may be beneficial for the child of a permanent resident to opt-out of CSPA, which the law allows you to do. This would only be helpful if the present wait time for F2 (children of permanent residents) visas is actually shorter than the wait for F1 (adult sons and daughters of citizens). This is rare, but it does happen. When your parent becomes a citizen, you have the option of remaining in F2 rather than going up to F1 if this happens to be the case. Check the visa bulletin regularly to weigh your options.