Protecting Children From “Aging Out”

CSPA: preventing aging-out of children

Summary

On 9/25/2024, USCIS issued new guidance on calculating ages under the Child Status Protection Act (CSPA) for noncitizens who will miss the “sought to acquire” requirements due to extraordinary circumstances. This update explains the CSPA age determination when circumstances prevent applicants from meeting the original timeline for obtaining lawful permanent resident (LPR) status.

What is the CSPA

The CSPA was created to prevent certain child beneficiaries from “aging out” due to delays in the process. Under the Immigration and Nationality Act (INA) an unmarried person under 21 is considered a child. But children can lose eligibility if they turn 21 during the process. The CSPA helps by determining and ‘freezing’ a child’s age at specific points, such as when a relevant immigration form is filed, allowing certain children under the age of 21 to retain their status. For family-based, employment-based and diversity visa categories the CSPA provides a calculation to retain child status based on visa availability dates. Generally applicants must take steps to obtain LPR status within one year of a visa becoming available.

Background on “Sought to Acquire” and CSPA Age Calculation

The Child Status Protection Act (CSPA) prevents children of immigrants from “aging out” or losing eligibility because they turn 21 before their process is complete. For immigration purposes, maintaining eligibility under the CSPA involves meeting the “sought to acquire” requirement within one year of visa availability by taking steps such as filing for adjustment of status or paying fees. But the new guidance covers scenarios where extraordinary circumstances prevented those actions and allows applicants to keep their CSPA protected status under certain conditions.

What are “Extraordinary Circumstances”

Key Factors:

  • The applicant was unable to act within the 1-year timeframe due to circumstances beyond their control.
  • The circumstances directly impacted the delay in seeking LPR status.
  • The delay was reasonable given the circumstances.

Example Situations:

  • Serious illness or family emergencies that disrupted the applicant’s timeline.
  • Sudden changes in immigration law or guidance that complicated compliance.

When an applicant shows extraordinary circumstances USCIS may allow an adjusted CSPA age calculation based on the original visa availability date.

Visa Retrogression

Visa retrogression where the visa availability moves backward often limits when applicants can file for adjustment of status. When visas retrogress in a specific preference category, an applicant may lose access to a visa that was once available and can break the continuous 1-year timeframe required by the CSPA. In those cases, USCIS allows a new 1-year period to start from the next time the visa becomes available. The applicant’s CSPA age will then be calculated based on that new visa availability date.

New Guidance

The new guidance covers scenarios where:

  • A visa was available for less than one year before it became unavailable.
  • Extraordinary circumstances prevented the applicant from seeking LPR status within that shorter period.

In those cases USCIS may:

  • Use the original visa availability date as the basis for the applicant’s CSPA age calculation if extraordinary circumstances are shown.

Additional Changes to USCIS Policy Manual:

  • Section Reorganization: The previous subsection on extraordinary circumstances (Section G, Subsection 3) has been renamed and updated as Section H which includes new guidance on how to calculate age when extraordinary circumstances apply.
  • New Subsections and Clarification: Section H has new content and more guidance on age calculation including what to do if you missed the original “sought to acquire” period due to extraordinary circumstances.

Applicants Will Benefit

This guidance brings clarity and consistency to CSPA age calculations in tricky situations so that:

  • Applicants with Extraordinary Circumstances: Noncitizen applicants who can show good reason for not meeting the “sought to acquire” requirement will have their CSPA age calculated based on the original visa availability date even if the visa becomes unavailable later.
  • Consistency: USCIS officers now have guidance on how to handle cases where the visa becomes unavailable and will treat applicants fairly and equally if they are affected by extraordinary circumstances.

Changes

USCIS Policy Manual, Volume 7, Part A, Chapter 7 now has:

  • New sections on CSPA calculations for extraordinary circumstances.
  • Improved organization to help you understand your options and requirements.

See the updated sections of the USCIS Policy Manual, Volume 7: Adjustment of Status for more information.

Child Status Protection Act (CSPA): Basics

The Child Status Protection Act (CSPA) was enacted to help noncitizen children who would “age out” of certain visa categories by turning 21. CSPA provides age calculation methods to protect qualifying children who would otherwise lose eligibility. This page explains CSPA’s purpose, scope and requirements.

1. Child Status Protection Act (CSPA) Purpose

CSPA is to prevent children from losing visa eligibility due to delays. A “child” under U.S. immigration law means an unmarried person under 21. CSPA does not change this definition but provides age calculation rules to help applicants qualify for a visa and remain a “child” even if they turn 21 while waiting. This is crucial for maintaining their eligibility for permanent residency under the CSPA.

2. CSPA Eligibility

CSPA applies to:

  • Immediate Relatives (IRs)
  • Family-based preferences and derivatives
  • VAWA (Violence Against Women Act) self-petitioners
  • Employment-based derivatives
  • Diversity Immigrant Visa (DV) derivatives
  • Derivative refugees and asylees

Each has its own CSPA rules.

3. Key Dates and CSPA Effective Date

CSPA became effective August 6, 2002. To qualify for CSPA, the underlying form or adjustment application must have been filed or pending on or after this date.

Special provisions:

  • USA PATRIOT Act Adjustment: For applications filed before September 11, 2001, applicants get an additional 45 days of CSPA.

4. How CSPA Age is Calculated

CSPA age calculation varies by category. Here’s how it works for each:

Immediate Relatives and VAWA Self-Petitioners

  • Age Freezes on Filing Date: Your age is frozen as of the date your Form I-130 or I-360 was filed. If you were under 21 when your petition was filed and remain unmarried, you are a “child” even if you turn 21 before your application is approved. This allows you to remain classified as a child for immigration purposes despite aging out.

Family and Employment-Based Preference & Diversity Visa

  • Pending Time Formula: Subtract the time a petition was pending from your age when a visa became available.
  • Formula: Age at Visa Availability – Pending Time = CSPA Age
  • Example: If you are 21 years and 4 months when a visa becomes available, and your petition was pending for 6 months, your CSPA age is 20 years and 10 months.

Derivative Refugees and Asylees

  • Age Freezes on Filing Date: For refugees, age freezes on the filing date of the Form I-590 (date of parent’s interview); for asylees, age freezes on the filing date of Form I-589. Derivative asylees must remain unmarried to qualify for CSPA under INA 209.

K-2 and K-4 Visa Holders

  • Limited CSPA Protection: CSPA does not cover K-2 and K-4 visas directly but K-2 and K-4 applicants can use CSPA if a U.S. citizen stepparent files a Form I-130 on their behalf before they turn 21.

5. “Sought to Acquire”

To benefit from CSPA as a family preference, employment preference or DV applicant, you must “seek to acquire” lawful permanent residence within 1 year of visa availability. Ways to meet this requirement:

  • Filing Form I-485 (Application to Adjust Status)
  • Submitting Part I of Form DS-260 (Immigrant Visa Electronic Application)
  • Paying the immigrant visa fee or Form I-864 fee
  • Filing Form I-824 (Application for Action on an Approved Application or Petition)

Special Note: If you miss the 1-year deadline, USCIS may excuse this if you can show extraordinary circumstances beyond your control.

Extraordinary and Emergency Circumstances

6. Exceptions and Extraordinary Circumstances

If you miss the “sought to acquire” 1-year deadline, you may still benefit from CSPA if you can show extraordinary circumstances that prevented timely filing, including:

  • Serious illness of the applicant or immediate family.
  • Legal disability, such as a mental impairment.
  • Ineffective assistance from legal counsel.

These must be beyond the applicant’s control and justify the delay.

7. Special Cases and Examples

  1. Visa Becomes Temporarily Unavailable: If a visa becomes unavailable before an applicant files, CSPA age calculation resets when the visa becomes available again.
  2. Changes in Priority: If USCIS changes the criteria, applicants get a new chance to meet CSPA requirements based on the new visa availability dates.
  3. Example: A visa becomes available in October but only for 3 months. It becomes available again in July. If the applicant files within 1 year of July, their CSPA age will be based on the new availability date unless they can show extraordinary circumstances for missing the first 3 months.

Changes Due to Petitioner’s Naturalization

If a lawful permanent resident (LPR) petitions a child and the LPR becomes a U.S. citizen, the petition’s classification changes. Here’s what you need to know:

LPR Parent’s Child Becomes Immediate Relative:

If an LPR parent becomes a U.S. citizen before the child turns 21, the child’s age is frozen at that date and they can qualify as an immediate relative without aging out.

Opting Out of Automatic Conversion:

If an unmarried son or daughter of an LPR (F2B category) wants to stay in F2B instead of switching to F1 (unmarried son or daughter of a U.S. citizen), they can opt out if the wait times are shorter. A signed letter with personal details should be sent to the USCIS office that approved the petition.

Application Process and Requirements

Navigating the application process for the Child Status Protection Act (CSPA) involves several critical steps and requirements. To qualify for CSPA benefits, applicants must be derivative beneficiaries of family-based or employment-based immigrant visa petitions, or derivative refugees or asylees. Additionally, they must have a pending or approved immigrant visa petition and be actively seeking to adjust status to lawful permanent resident.

To initiate the process, applicants need to submit Form I-485, Application to Register Permanent Residence or Adjust Status, along with the required filing fee. Supporting documentation, such as a copy of the applicant’s birth certificate, passport, and the immigrant visa petition, must also be provided to substantiate the application.

A crucial aspect of the application is demonstrating that the applicant has sought to acquire lawful permanent resident status within one year of their priority date becoming current. This can be achieved by filing an adjustment of status application or submitting a written request to transfer the underlying basis of the adjustment of status application. Meeting this requirement is essential to securing CSPA benefits and ensuring the applicant’s age is calculated favorably under the act.

Evaluating Extraordinary Circumstances

In certain situations, applicants may face challenges that prevent them from meeting the sought to acquire requirement within the stipulated timeframe. These extraordinary circumstances can include serious illness, natural disasters, or legal errors that hinder the applicant’s ability to take the necessary steps towards seeking lawful permanent resident status.

USCIS evaluates claims of extraordinary circumstances on a case-by-case basis, considering the specific facts and context of each situation. Applicants must provide comprehensive documentation to support their claims, such as medical records, evidence of natural disasters, or proof of legal errors.

If USCIS determines that the applicant’s failure to meet the sought to acquire requirement was due to extraordinary circumstances, the applicant may still be eligible for CSPA benefits. In such cases, the applicant’s CSPA age will be calculated based on the original visa availability date, rather than the date the visa became available after the extraordinary circumstances had passed. This adjustment ensures that applicants are not unfairly penalized for delays beyond their control.

USCIS February 2023 CSPA Update: What You Need to Know

In February 2023, USCIS released major updates to its CSPA guidance and how age is calculated for noncitizen children seeking to adjust status. The announcement clarifies when a visa “becomes available”, a key point in CSPA eligibility. This is a big step in helping applicants who are at risk of “aging out” due to long processing times. Here’s the breakdown, what’s changed and who’s affected.

February 2023 Policy Update Highlights

In February 2023, USCIS updated its Policy Manual to redefine when an immigrant visa is considered “available” for CSPA age calculations. The update clarifies eligibility criteria and expands the law to help more applicants avoid aging out.

Key changes include:

  1. New Visa Availability for CSPA Calculations
  • Previously, USCIS used the Final Action Dates chart in the Department of State’s Visa Bulletin to determine visa availability. Now, USCIS uses the Dates for Filing chart to establish visa availability. This means applicants can lock in their age sooner using the filing chart instead of waiting for the final action date.
  • This will help applicants in categories with long wait times to qualify for CSPA.
  1. Expanded Eligibility for Motions to Reopen
  • Applicants whose cases were denied because they aged out under the old interpretation of visa availability can now reopen their case. If an applicant thinks their CSPA age would qualify under the new guidance, they can file a motion to reopen using Form I-290B, Notice of Appeal or Motion.
  • File the motion within 30 days of the decision, but USCIS may accept late motions if the applicant can show that the delay was reasonable and beyond their control.
  1. Effective Date and Applicability
  • The policy is effective February 14, 2023 and applies to all adjustment of status applications adjudicated on or after that date. It’s also retroactive to those who filed applications before February 14, 2023 if they meet the new criteria.

Impact

These changes affect individuals in preference categories (family-based and employment-based) who are at risk of aging out. By using the Dates for Filing chart for age calculations, USCIS is allowing more applicants to qualify under CSPA. This is especially good for applicants in high demand categories from countries with big backlogs like Mexico, India and the Philippines.

Example

An applicant is a dependent child on their parent’s family-sponsored visa application. Under the old policy, the child would only lock in their CSPA age when the visa was current according to the Final Action Dates chart which could be years after the Dates for Filing chart. Now, using the Dates for Filing chart, the applicant can calculate their CSPA age based on an earlier date and potentially qualify to remain a child even if they turn 21 before the Final Action Date is current.

How to Qualify for CSPA Under the New Rules

To qualify for CSPA under the new rules, follow these steps:

  1. Check CSPA Eligibility: Applicant must be in a covered category (e.g. family preference, employment-based preference, diversity visa derivative). Principal applicant must have filed a Form I-130, I-140, I-360 or other eligible form with USCIS.
  2. Calculate CSPA Age Using Dates for Filing Chart: Calculate the applicant’s age by taking the applicant’s actual age on the date the visa becomes available (based on the Dates for Filing chart) and subtract the petition’s pending time.
  3. Sought to Acquire Requirement: After eligibility is established, applicants in preference categories must show they sought to acquire LPR status within one year of visa availability. This can be done by filing Form I-485 or paying the immigrant visa fee.

Steps to Reopen Previously Denied Cases

For those whose cases were denied because they aged out, the new guidance offers an opportunity to reopen the case based on the new CSPA interpretation. Here’s how to do it:

  1. File Form I-290B: File a Notice of Appeal or Motion (Form I-290B) to reopen the case. Provide evidence of how the new CSPA policy would affect the age calculation and establish that the applicant qualifies under the new guidance.
  2. Explain Delays, if Any: If filed more than 30 days after the original decision, explain the reason for the delay and any extraordinary circumstances beyond the applicant’s control.
  3. Pay Fees: The motion requires a fee unless the applicant qualifies for a fee waiver. Check the USCIS Filing Fees page to see the current fee.

More Resources and Links

  • For Refugees: INA 207(c)(2)(B)
  • For Asylees: INA 208(b)(3)(B)
  • General CSPA Guidance: USCIS Policy Manual, Volume 7, Part A, Chapter 7

For more information on K-1, K-2 and K-4 visa processing, see the Fiancé(e) Visas and Green Card for Fiancé(e) of U.S. Citizen pages on the USCIS website.

Summary Checklist

Make sure you understand your eligibility and CSPA protection by:

  • Category-specific rules: CSPA rules and age calculations vary by category.
  • Meeting the sought-to-acquire requirement: File promptly or document any extraordinary circumstances.
  • Tracking your petition status: Age calculations depend on pending times and filing dates.
  • Naturalization impacts: If your petitioner naturalizes, see if this helps your CSPA status.

The CSPA is a tool to protect age eligibility allowing certain applicants to stay in child status beyond their 21st birthday.

Conclusion

The Child Status Protection Act (CSPA) is a vital piece of legislation that offers significant protections for young individuals seeking to immigrate to the United States. Understanding the application process and requirements, as well as the criteria for evaluating extraordinary circumstances, is crucial for navigating the CSPA process and securing its benefits.

Given the complexity of the CSPA and the broader US immigration system, it is highly recommended that applicants seek the guidance of an experienced immigration attorney. Professional legal advice can help ensure eligibility for CSPA benefits and provide support throughout the application process. Additionally, staying informed about changes to the CSPA and other immigration laws and policies is essential for maintaining eligibility and maximizing immigration benefits.

FAQs

Who is a “child” under CSPA?
An unmarried person under 21 years of age. CSPA does not change this definition but provides rules to keep “child” status even if the person turns 21 while waiting for a visa.

How do I show “extraordinary circumstances”?

Provide documentation of serious illness, legal disability or other uncontrollable factors that prevented you from filing on time.

What if I filed before August 6, 2002?

CSPA doesn’t apply unless the qualifying form was filed or pending after this date.

Can I reapply if my category changes?

Yes, but your CSPA age calculation will be based on the new petition or category.

What is “pending time” for CSPA purposes?

The time between the petition’s filing date and approval date which affects your CSPA age calculation.

What is the Child Status Protection Act (CSPA)?

  • The CSPA, passed in 2002, is to protect beneficiaries of specific immigrant visa categories from “aging out” due to USCIS processing delays. Under immigration law, only those under 21 and unmarried are considered children. CSPA provides a formula to “freeze” an applicant’s age so they can remain a child even after they turn 21.

What is “aging out”?

  • “Aging out” means the beneficiary turns 21 before their visa or adjustment of status application is approved, making them no longer a child under immigration law. This can result in delays, additional requirements or loss of eligibility for certain visa categories. CSPA helps some applicants remain eligible even if they age out.

Who is eligible for CSPA?

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

How does CSPA determine a child’s eligibility?

  • CSPA “freezes” the child’s age based on specific calculations and eligibility requirements for each category. Applicants must remain unmarried to be eligible.

How is CSPA age calculated?

  • For family preference, employment-based preference and DV applicants, CSPA age is calculated by subtracting the petition’s pending time from the child’s age when the visa becomes available. The formula:
  • CSPA Age = Age at Visa Availability – Pending Time of Petition
  • For immediate relatives, derivative asylees and derivative refugees, the age is frozen on the date the petition is filed (or at the time of the principal’s asylum application).

What is “pending time” of a petition?

  • Pending time is the period between the date the petition was filed and the date it was approved. This period is subtracted from the applicant’s age at the time the visa becomes available to calculate the CSPA age.

Are K nonimmigrant visa holders covered under CSPA?

  • K-2 and K-4 visa holders are generally not covered but may be eligible under CSPA if they meet the eligibility requirements and are derivatives on a Form I-130 petition.

What does “sought to acquire” mean in CSPA context?

  • To be eligible for CSPA, family-based, employment-based and DV applicants must show an intent to acquire lawful permanent residence (LPR) within one year of visa availability. This can be fulfilled by:
  • Filing Form I-485, Application to Register Permanent Residence or Adjust Status
  • Filing a completed Form DS-260, Immigrant Visa Application
  • Paying the immigrant visa fee to the Department of State (DOS)
  • Paying the Affidavit of Support (Form I-864) review fee to DOS

What happens if I miss the “sought to acquire” requirement?

  • Missing the one-year “sought to acquire” period can result in loss of CSPA protection. But USCIS may waive this requirement in cases of “extraordinary circumstances” if the delay is reasonable and beyond the applicant’s control.

What are “extraordinary circumstances” for the sought to acquire requirement?

  • Extraordinary circumstances may include serious illness, death in the family, legal or mental disability, ineffective assistance of counsel or significant policy changes. The applicant must provide evidence that the delay was unavoidable and reasonable under the circumstances.

How does visa retrogression affect CSPA calculations?

  • Visa retrogression, or the backward movement of priority dates, may make a visa unavailable after it was initially available. In such cases, USCIS may reset the one-year sought to acquire period when the visa becomes available again, using the new availability date to calculate CSPA age.

How is CSPA age calculated for immediate relatives?

  • For immediate relatives, the CSPA age is frozen on the date the qualifying petition is filed (Form I-130 or Form I-360 for VAWA applicants). The applicant must have been under 21 and unmarried on the filing date to qualify.

How is CSPA age calculated for family preference applicants?

  • Family preference applicants’ CSPA age is calculated by subtracting the petition’s pending time from the age when the visa becomes available. The one-year sought to acquire requirement applies here too.

What if I am the child of a green card holder who becomes a U.S. citizen?

  • If the petitioning parent naturalizes before the child turns 21, the child’s age “freezes” on the naturalization date and they become an immediate relative and won’t age out. If they turn 21, they can retain CSPA protection by opting out of the automatic change in visa category.

What if my visa availability period is interrupted before the one year mark?

  • If a visa is available for less than one year and then retrogresses, applicants will get a new one-year period to meet the sought to acquire requirement when the visa becomes available again.

Does CSPA apply to asylees and refugees?

  • Yes. For derivative refugees, CSPA age is based on the date the principal refugee’s Form I-590 was filed. For derivative asylees, it is based on the date the principal asylee’s Form I-589 was filed. The applicant’s age is frozen as of these filing dates and there is no sought to acquire requirement for either group.

Are DV applicants eligible for CSPA protections?

  • Yes, but only DV derivative applicants are eligible under CSPA. The CSPA age for DV derivatives is calculated by subtracting the time between the DV Program registration period and the DV Selection Letter date from the applicant’s age at visa availability.

How do I apply for CSPA coverage?

  • CSPA protection is applied automatically when applicants meet the requirements. To check if you have coverage, consult the USCIS Policy Manual or talk to an immigration attorney.

Can I appeal if my CSPA application is denied?

  • If denied, you can file a motion to reopen using Form I-290B. This must be filed within 30 days of the decision but exceptions can be made if the delay was reasonable and unavoidable.

Where can I find more information about CSPA eligibility?

  • The USCIS Policy Manual has all the information on CSPA and is updated regularly. For case specific questions, consult an immigration attorney or USCIS directly.

Does CSPA apply to all family-based petitions?

  • No. CSPA only applies to the categories listed above, including immediate relatives, family-sponsored preference categories and certain derivative beneficiaries under employment-based petitions and humanitarian programs.

Are there any fees for a CSPA-based adjustment or to reopen a denied application?

  • Yes. Standard filing fees for forms like Form I-485 or Form I-290B apply. Fee waivers are available for those who qualify.

How does the new CSPA policy prevent aging out?

  • By using the Dates for Filing chart, USCIS allows applicants to freeze their CSPA age earlier which can prevent aging out for those close to the age limit.

Who is eligible for the new CSPA calculation?

  • Derivatives in family-sponsored and employment-based categories and diversity visa derivatives if they meet all other CSPA requirements.

My case was previously denied due to aging out. What can I do?

  • You can file a motion to reopen using Form I-290B if you think you now qualify for CSPA. File as soon as possible and include an explanation if you file more than 30 days after the denial.

How do I calculate my new CSPA age?

  • Subtract the petition’s pending time from your age on the date the visa became available according to the Dates for Filing chart.

Conclusion

CSPA is age-out protection for certain applicants, an alternative age calculation to keep children eligible for immigrant visas or green cards despite the delay. Know the CSPA requirements, eligibility and calculations to make sure all qualifying children can benefit from this law.

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