Practical Guide to the Child Status Protection Act (CSPA) - Part 2

Re-computation or Recalculation of Age

The CSPA changed the rules on how the age of a child should be computed for immigration purposes.

First, the CSPA changed the rules for determining whether a beneficiary who turned 21 years old while seeking status as an immediate relative of a U.S. citizen may still be considered a child.

Second, it changed the rules for determining whether a direct or derivative beneficiary who turned 21 years old while seeking status as a family-based, employment-based, or diversity visa immigrant may still be considered a child.

Lastly, the CSPA changed the rules for determining whether a derivative beneficiary who turned 21 years old while seeking status as an asylee or refugee may still be considered a child.

Children of U.S. Citizens

There is an overall cap of 480,000 immigrant visas every year. The annual minimum family-based preference limit is 226,000 immigrant visas, while the annual minimum employment-based preference limit is 140,000 immigrant visas. The per-country limit for preference immigrants is set at 7% of the total annual family-based and employment-based preference limits, i.e., 25,620, while the dependent area limit is set at 2%, or 7,320.

Immediate relatives of U.S. citizens are part of the overall cap, but they are not subject to a numerical limit within the overall cap. Because of this special treatment given only to immediate relatives of U.S. citizens, there are always visas available to immediate relatives.

Immediate relatives are:

• Spouses of U.S. citizens
• Unmarried minor children [under 21 years old] of U.S. citizens
• Parents of U.S. citizens

An unmarried minor child of a U.S. citizen is considered as an immediate relative of said U.S. citizen and therefore, he is entitled to certain immigration benefits which are not available to child beneficiaries who belong to the 1st, 2nd, 3rd, and 4th family-based preference categories.

First, his case is not subject to numerical visa limits. Since immigrant visas are readily available, the child of a U.S. citizen is usually able to apply and obtain immigrant status within a shorter period of time compared to beneficiaries from family-based preference categories.

Further, unlike beneficiaries from other family-based preference categories, the child of a U.S. citizen who had become out-of-status is still allowed to apply for and adjust to lawful permanent resident status here in the United States.

Generally, you are no longer allowed to extend, change, or adjust your status to lawful permanent resident once you become out-of-status. As an exception, however, if you are the spouse, parent, or unmarried child under 21 years old of a U.S. citizen, then you are still allowed to apply for and adjust to lawful permanent resident status here in the United States regardless of the length of time you have failed to maintain your lawful nonimmigrant status.

Prior to the enactment of the CSPA, the child of a U.S. citizen would lose his preferential status as a “child” upon reaching the age of 21 years old and his case would automatically be converted from immediate relative category [petition of U.S. citizen in behalf of minor unmarried child] to the F-1 category. This means that he would lose all immigration privileges or benefits to which an immediate relative is entitled to. There was no option then for the child to stay in the immediate relative category once the child turned 21 years old.

The rules, however, in determining whether a child can still be considered as an immediate relative of a U.S. citizen changed drastically after the enactment of the CSPA.

Use of Age on Petition Filing Date

Under the CSPA, the age of the beneficiary on the date the immigrant petition was filed will determine whether the beneficiary seeking status as an immediate relative of a U.S. citizen may still be considered a child. The age of the child will be “frozen” on the date the U.S. citizen parent filed the immigrant petition on behalf of the child. “Frozen” means that if the child was below 21 years old on the date the immigrant petition was filed by his U.S. citizen parent, he will remain classified as an unmarried minor child or an immediate relative of his parent even if he turns 21 years old or older during the processing of his case.

Illustration: In 2004, Pedro, a U.S. citizen, filed an immigrant petition in behalf of his unmarried minor daughter, Maria, on the day before she celebrated her 21st birthday. At the time of the filing of the petition, Maria was 20 years and 364 days old. Despite the fact that Maria turned 21 years old the very next day, Maria would still be considered as an unmarried minor child or an immediate relative of Pedro because under the CSPA, her age was frozen at 20 years and 364 days old (her age on the date the immigrant petition was filed in her behalf). Since there is no numerical limit on immigrant visas available to immediate relatives, Maria would able to obtain lawful permanent resident status faster.

Age Based on Date the Parent Naturalized

Under the CSPA, if the petition was filed by a lawful permanent resident parent and that parent, while the case is pending, becomes a naturalized citizen, the age of the child will be frozen on the date the parent naturalized. This means that if the child was below 21 years old on the date the parent became a naturalized citizen, the case will automatically be converted from the F-2A category to the immediate relative category, and the child will remain classified as an unmarried minor child or an immediate relative of his parent even if he turns 21 years old while the case is pending.

Illustration: In 2004, Pedro, a lawful permanent resident, filed an immigrant petition on behalf of his unmarried minor child, Maria. At the time of the filing of the petition, Maria was 20 years and 6 months old and therefore, the case belonged to the F-2A category. Exactly four months later, while the case was pending, Pedro became a naturalized U.S. citizen.

According to the CSPA, Maria’s age should be frozen on the exact date her father, Pedro, became a naturalized citizen (20 years and 10 months old). Even if Maria turns 21 years old while the case is pending, she will not lose her preferential status as a child and will always be considered as an immediate relative of her U.S. citizen parent. Since Maria was unmarried and below 21 years old on the date Pedro became a naturalized U.S. citizen, her case will be automatically converted from the F-2A category to the immediate relative category. In view of the fact that there is no numerical limit on immigrant visas available to immediate relatives, Maria would be able to obtain her lawful permanent resident status right away. [Note: If at the time Pedro became a naturalized citizen, Maria was already 21 years old or older, the case would be converted instead from F-2A category to F-1 category.]

Age Based on Date of the Termination of the Marriage

Under the CSPA, if the petition was filed by a U.S. citizen parent in behalf of a married child and the marriage of the child, while the case is pending, legally terminates, the age of the child will be frozen on the date of the termination of the marriage. If the child was below 21 years old on the date the marriage terminated, the case will automatically be converted from the F-3 category to the immediate relative category, and the child will remain classified as an unmarried minor child or an immediate relative of his parent even if he turns 21 years old later on while the case is still being processed by the government.

Illustration: In 2004, Pedro, a U.S. citizen, filed an immigrant petition in behalf of his child, Maria. At the time of the filing of the petition, Maria was 18 years old and married to Jose. The case, therefore, belonged to the F-3 category [petition of U.S. citizen on behalf of married child]. Exactly two years later, while the case was pending, Maria’s marriage to Jose was declared null and void by the court. According to the CSPA, Maria’s age will be frozen on the date of termination of her marriage to Jose. Since she was just 20 years old on the date of termination of her marriage, her case will automatically be converted from the F-3 category to the immediate relative category. She will retain status as an immediate relative of her parent even if she turns 21 years old while the case is pending. [Note: If at the time her marriage terminated, Maria was already 21 years old or older, then her case would be converted instead from F-3 category to F-1 category].

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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios. He has more than 20 years of experience and a successful track record in handling CSPA cases, waiver cases, humanitarian reinstatement cases, employment-based and family-based petitions, PERM and naturalization applications, as well as other types of immigration applications.

If you want to know more about this topic, then we invite you to schedule an appointment for your free initial office consultation by calling us at (626) 331-8188.

The above article does not and is not intended to constitute legal advice for a specific immigration problem, and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.

Copyright 2022. Law Offices of Eugene M. Palacios. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without prior written permission from the author.