Child Status Protection Act (CSPA)

As a U.S. citizen, it is fairly easy to get your child a green card. Your child is considered an immediate relative and is given preferential treatment. They are not subject to the statutory limits on the number of green cards issued each year and will not have to wait as long before a green card becomes available to them.

However, the USCIS and the Department of State (DOS) move slowly. Immigration petitions are often delayed. You might submit the immediate relative petition long before your child turns 21, but long waiting times can mean your child could “age out” by turning 21 before the petition was approved. As a result, they can no longer qualify for a green card as an immediate relative.

The Child Status Protection Act (CSPA) was enacted to address this problem. The Child Status Protection Act (CSPA) “freezes” the age of children who submit an immigration petition. Is your child’s green card application protected under the Child Status Protection Act (CSPA)? Read on to find out more. 

Child Status Protection Act Explained

The Child Status Protection Act (CSPA) was enacted to keep immigrant families intact. 

Due to lengthy delays on the green card waitlist and standard USCIS and DOS processing times, an immigrant child can sometimes “age out” of the immigration process.

“Aging out” is the process by which an immigration petition is filed for a child. But before the petition can be approved, the child turns 21. Even if a petition was filed for a child well before the 21st birthday, long waiting times can mean the child could “age out” by turning 21 before the petition was approved. 

The “aging out” phenomenon has led to some unfair outcomes. Many young people with pending applications have to wait even longer for a green card because they need to start new, adult petitions. In some instances, the “aged out” applicants were no longer eligible for a green card at all.

The Child Status Protection Act (CSPA) is meant to ensure sons and daughters can immigrate to the U.S. together with their parents. 

The Child Status Protection Act (CSPA) “freezes” the age of children who submit an immigration petition. 

The CSPA applies to immediate relative children when:

• their petitioning U.S. citizen parent submits a visa petition on their behalf 
• a petitioning permanent resident parent naturalizes, or
• a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.

How the CSPA Helps U.S. Citizens Bring Children to the U.S

In immigration law, preference is given to a U.S. citizen’s “immediate relatives”. An immediate relative is defined as your spouse and children.

This preferential treatment is a big deal. Your immediate relatives are not subject to the statutory limits on the number of green cards that USCIS and DOS can issue each year. This means they do not have to wait as long before a green card becomes available to them.

The Child Status Protection Act (CSPA) concerns children. A “child” is defined by U.S. immigration law as an unmarried person under the age of 21. 

Once the child of a U.S. citizen turns 21 or gets married, they are no longer legally considered a child. This means they are no longer considered an immediate relative of the U.S. citizen.

If you are not an immediate relative of a U.S. citizen, you no longer get preferential treatment. This means you have to wait until a green card becomes available to you, which can take many years.

The Child Status Protection Act (CSPA) ensures as long as the USCIS receives Form I-130 at least one day before your child turns 21, your child will be considered an “immediate relative” even if he or she is 21 or older by the time the petition is finally approved.

CSPA Strategy for Immediate Relative Petitions

If you are a U.S. citizen hoping to have your child live in the U.S. permanently, you should consider the following strategies:

• Check whether your child is already a U.S. citizen – the rules for who may acquire U.S. citizenship through parents have changed throughout the years. Before opening an immigration petition, check whether your child may already be eligible for U.S. citizenship based on their place of birth and residency.
• File Form I-130 BEFORE your child gets married and BEFORE your child turns 21 – since the  Child Status Protection Act (CSPA) has been implemented, filing in time means your children will not have to wait for an immigrant visa to become available.

Keep in mind if your child gets married before receiving a green card, the petition will no longer be considered to be an “immediate relative” one. The CSPA does not cover scenarios like these. Your child’s marriage will mean a significantly longer wait for a green card.

Children’s Petitions Through Parental Naturalization

If you are not a U.S. citizen, your minor children are not considered “immediate relatives” under the CSPA. Unless you included your children as derivatives at the time you applied for permanent residence, they will have to wait for a green card to become available.

You can, however, make the most of the Child Status Protection Act (CSPA) if you are eligible to receive a naturalization certificate. If you become a U.S. citizen before your Form I-130 is approved your child’s age will “freeze” under the CSPA  on the date you naturalize.

Widowed or Divorced Children of U.S. Citizens

If your child gets married before receiving a green card, the petition will no longer be considered to be an “immediate relative” one. Your child’s marriage will mean a significantly longer wait for a green card. This is true even if they are younger than 21 years old.

 If, however, they are widowed or divorced before the age of 21, the child of a U.S. citizen reverts to the legal status of a child. They will once again be considered an immediate relative of the U.S. citizen. If your child’s marriage is terminated before he or she turns 21, you can convert the visa petition to “immediate relative” by notifying USCIS.

It is important to note that there can be no derivative beneficiaries for immediate relative petitions. That means if your child has their own child, that child (your grandchild)  cannot be included if you submit an immediate relative petition.

Read More

• What Does the Constitution Say About Immigration?
• Complete Guide to the EAGLE Act
• What is Immigration Reform?

Conclusion

The Child Status Protection Act (CSPA) was created to ensure that sons and daughters can immigrate to the U.S. together with their parents. It “freezes” the age of children who submit an immigration petition so they don’t “age out” while the process is running. The CSPA applies to immediate relative children when their petitioning U.S. citizen parent submits a visa petition on their behalf, a petitioning permanent resident parent naturalizes, or a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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