Can the Child Status Protection Act (CSPA) save my eligibility for Green Card?

Angelica Rice • Apr 13, 2023

      The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card.


      Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out.¹ The CSPA went into effect on August 6, 2002.


      CSPA does not change the definition of a child. Instead, CSPA provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. The calculated age is the child’s “CSPA age.” This allows some people to remain classified as children beyond their 21st birthday. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child.

CSPA applies only to the following people:


  • Immediate relatives (including derivatives of widow(er)s);
  • Family-sponsored preference principal applicants and derivative applicants;
  • Violence Against Women Act (VAWA) self-petitioners and derivative applicants;
  • Employment-based preference derivative applicants;
  • Diversity Immigrant Visa (DV) derivative applicants;
  • Derivative refugees; and
  • Derivative asylees.


      If you are applying for a Green Card based on one of the categories above, you are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status, or one of the following underlying forms was filed or pending on or after Aug. 6, 2002:


 

The CSPA calculation for immediate relatives is different than the calculation for family and employment preference immigrants.


      If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. However, you must remain unmarried in order to qualify.


      If you are a family preference (including VAWA self-petition), employment-based preference, or diversity visa (DV) applicant, calculate your CSPA age by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at time of visa availability). However, you must remain unmarried in order to qualify.


The formula for calculating CSPA is:

 
Age at Time of Visa Availability - Pending Time = CSPA Age


Example:


You are 21 years and 4 months old when USCIS considers an immigrant visa available to you. Your petition was pending for 6 months. Calculate your CSPA age as follows:

21 years and 4 months - 6 months = 20 years and 10 months


Age at Time of Visa Availability


The date the visa is considered available is the later of these 2 dates:


  • The date the petition was approved; or
  • The first day of the month of when USCIS considers a visa available for filing an adjustment of status application based on your immigrant preference category, country of chargeability, and priority date. You must check the USCIS website to determine which of the 2 charts (Dates for Filing or Final Action Dates) from the Department of State (DOS) Visa Bulletin you may use to file an adjustment of status application.

 

      You will need to use the visa bulletin (see related article on our website for understanding the visa bulletin and retrogression) to complete the calculation and determine the appropriate “time of visa availability”.


**There was a recent USCIS policy change with regard to this portion of the CSPA calculation!**²


      The recent change in policy allows the use of Chart B, Dates for Filing (earliest date when applicants may be able to apply), to determine when the adjusted age is calculated rather than Chart A, Final Action Dates (dates when visas may finally be issued). Prior to the change, the agency required children to use Chart A. 

 

Pending Time


      The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date.


The formula determining the length of time the petition was pending is as follows:


Approval Date - Filing Date = Pending Time


Example:


Your mother filed a petition for you on Feb. 1, 2016. We approved the petition on Aug. 1, 2016.


Aug. 1, 2016 - Feb. 1, 2016 = 6 months

 

Sought to Acquire Requirement


      In order to benefit from CSPA as a family preference (including VAWA self-petition), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of when a visa becoming available to you for filing an adjustment of status application. This is referred to as the “sought to acquire” requirement.


You may satisfy this requirement by:



     The change in policy also affects when the one-year filing requirement starts. Under the prior policy, applicants could wait until the priority date became current in Chart A to take action. Now they must pay attention each month to whether the USCIS is allowing applicants to use Chart B for filing purposes. If so, the one-year period begins on that month, not when the priority date becomes current using Chart A.


     I know this all seems extremely complex and confusing, many immigration practitioners thought so too! So, an online calculator was developed to assist with calculating CSPA, a link to this online calculator is below:


https://www.immihelp.com/cspa-calculator/

 

     If you have additional questions about CSPA or believe this calculation may apply in your case, please contact our office for professional assistance!


¹ https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa

² https://www.uscis.gov/newsroom/alerts/uscis-updates-child-status-protection-act-cspa-age-calculation-for-certain-adjustment-of-status

This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.

Angelica Rice

Know Your Rights If You Are Participating in Protests

By Denice Flores • 02 May, 2024
The U.S. Constitution protects all immigrants, including undocumented immigrants while participating in protests in the U.S. Here is a list of some of the rights covered in the U.S. constitution to consider when you are participating in protests: Right to free speech. The First Amendment prohibits the government from restricting your right to free speech. People have the right to participate in protests, marches, and demonstrations. Right to be free from retaliation. The First Amendment prohibits the government from retaliating against you for exercising your rights such as your right to free speech. Right to remain silent. The Fifth Amendment protects you from self-incrimination and provides the right to remain silent. Right against unreasonable search and seizure. The Fourth Amendment protects you against unreasonable searches and seizures. Right to speak to a lawyer. If you are arrested or detained, you have the right to speak to a lawyer. Keep in mind, if you are undocumented and you are participating in protests, you are at higher risk of being detained by immigration officials if they are present at the protest. If you are undocumented make sure you have a plan in place if you are arrested or detained by law enforcement or immigration officials. It is important to take precautions and if you are arrested or detained you should contact an attorney immediately. If you have questions, please schedule a consultation with one of our experienced attorneys and we will be more than happy to assist you.

New USCIS Policy regarding Expedite Requests

By Kris Quadros-Ragar • 18 Apr, 2024
The latest policy alert, PA-2024-05, issued by the U.S. Citizenship and Immigration Services (USCIS) on March 21, 2024, brings revisions to the USCIS Policy Manual, specifically focusing on expediting requests. These updates aim to simplify and elucidate the process for applicants, particularly those facing emergencies or urgent humanitarian needs. The primary goal is to make it easier for applicants to understand how to request expedited processing for their various submissions, including applications, petitions, appeals, or motions, especially in cases concerning government interests or urgent situations. While USCIS has historically permitted immigration benefit seekers to request expedited application processing in specific circumstances, the process has frequently been perceived as unclear, with decisions made arbitrarily on a case-by-case basis. The recent update seeks to rectify this by providing clarity and uniformity to the process and establishing explicit criteria and documentation standards. In order to request expedited processing, applicants need to adhere to a more defined procedure. This involves submitting thorough documentation and illustrating the urgency or government relevance of their case. The recent update also explains how USCIS reviews these requests, offering applicants a better grasp of the process. The update introduces special measures for speeding up the processing of Form I-131 (Application for Travel Document) in emergency situations. This acknowledges the urgent need for certain applicants to travel. The policy also acknowledges that expedited requests may be evaluated if there is evident USCIS error, aiming to uphold fairness and accountability within the processing system. These changes aim to make the expedited request process more transparent and understandable for applicants and their representatives. In summary, USCIS's revision regarding expedited requests signifies a notable advancement in rendering the immigration process more transparent and attentive to applicants' requirements. By comprehending these updated guidelines, applicants and their representatives can more effectively navigate the expedited request procedure, ensuring that urgent cases receive due consideration. If you believe you qualify for expedited processing under the recent USCIS policy updates, feel free to contact our office, and we will be more than happy to assist you. FONT : https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5

New USCIS Asylum Program Fee for I-129 and I-140 Petitions

By Kyle Huffman • 11 Apr, 2024
As of April 1, 2024, USCIS has instituted an inflation adjustment to immigration application filing fees . These fee increases apply to a majority of the different application types, including family-based, non-immigrant, and immigrant petitions. As a part of these fee increases, USCIS has also instituted a new program designed to provide funding to the United States’ Asylum Program, in order to better address the massive backlog of pending asylum claims currently waiting to be adjudicated. Unfortunately, these changes have led to confusion among petitioners for when they are required to pay the Asylum Program Fee, and when they may qualify for a 50% or complete exemption from the fee. The Asylum Program Fee is required to be submitted by employers in all I-129 and I-140 petitions filed on or after April 1, 2024. The Asylum Program Fee is $600, however, certain exemptions apply . Small employers , defined as having 25 or fewer total employees, qualify for a reduction of the Asylum Program Fee, but are still required to submit a reduced fee of $300. Individual petitioners, or self-petitions, such as in the case of an EB-2 National Interest Waiver, are considered small employers for the purpose of the Asylum Program Fee and are also required to submit the reduced $300 fee. Non-profit organizations are exempted from the Asylum Program fee and are not required to submit any additional funds with the ordinary I-129 or I-140 filing fee. In addition, non-profits qualify for a 50% reduction of the ordinary filing fee in certain types of applications, bringing the overall filing fee burden down substantially for non-profit organizations. With these changes to USCIS’ filing fee schedule, USCIS is hoping for significant improvements to efficiency and processing for pending asylum applicants. If you or your petitioning organization need any assistance in preparing an application for an immigration benefit, including ensuring proper compliance with the new fee requirements, our office is ready and waiting to help!
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