Published: September 1, 2021
In 2002, Congress passed a law called Child Status Protection Act (CSPA) to protect children who may age out or turn 21 because of delays in pending applications in the immigration service. The Immigration and Nationality Act defines “child” as a person who is both under the age of 21 years old and unmarried. This process somehow does not apply to immediate relatives and non-immigrant visas. For immediate relatives, they stay at the age of 21 at the filing of I-130.
CSPA makes a child’s age frozen by calculating the age starting with the date when the visa becomes available. For example, when the priority date becomes current on February 1, 2021, you take the age of the child age at such date and subtract the amount of time the I-130 is pending in the immigration service. The I-130 pending time is from the time the I-130 is filed up to the date of approval.
An illustrative example is when a child is 26 years old today when the priority date becomes current and the immigrant visa petition is pending for 7 years, they still have not aged out the process. But if the visa is pending for 2 years, which brings them to 24, the child has already aged out the process. As a consequence, the applicant would probably need to wait further until a visa under a different category becomes available.
Another illustrative example is when a person named Johnny was born in Ireland on June 6, 1997. His uncle filed an I-130 for his father, which makes the case under the FB-4 Derivative category, with a priority date of December 6, 2005. Then the priority date becomes current in the February 2021 visa bulletin:
Johnny’s age is 24 years old when the visa becomes available. From his age, you deduct the time when the I-130 petition was pending (4 years), resulting in a CSPA age of 20. In conclusion, Johnny still appears to be protected under CSPA if he acts within a year of visa availability. He can either file Form I-485, Adjustment of Status (AOS) if he is in the United States, or electronic Form DS-260, Immigrant Visa Electronic Application, or any other ways necessary to become lawful residents.
(Please note that this article does not create an Attorney-Client relationship between our law firm and the reader and is provided for informational purposes only. Information in this article does not apply to all readers. Readers should not rely on this information as legal advice and should seek specific counsel from a qualified attorney based on their individual circumstances. Thank you.)