The Child Status Protection Act Protects Children from Aging out While Adjustment Is Pending

1215912_paper_chain_in_the_dark.jpgBefore the Child Status Protection Act was enacted in 2002, children who turned 21 while their permanent residence applications were pending were no longer considered children for immigration purposes and could no longer get a green card as an immediate relative. This circumstance is known as “aging out.” Foreign national children of U.S. citizen parents are eligible to obtain permanent residence (or green card) as an immediate relative. A child is defined by the Act as an unmarried person under age 21. Many people were aging out as a result of the huge backlogs and long processing times, and Congress enacted the CSPA in order to remedy this.

Thanks to the CSPA, once a U.S. citizen parent files a visa petition (Form I-130) on behalf of the child, the child’s age freezes for immigration purposes. Therefore, if the child becomes 21 while the petition is pending, the person is still considered to be a child and is still eligible for permanent residence. If a permanent resident parent becomes a naturalized U.S. citizen, the child’s age freezes on that date. For a child with a pending application for permanent residence based upon a preference classification, the CSPA allows the time the application was pending to be subtracted from the child’s biological age.

In order to be protected under CSPA against aging out, three requirements must be met. First, the child must have been the beneficiary of a pending or approved visa petition on or after the date the CSPA was enacted, August 2, 2002. Second, there must not have been a final decision on the child’s application for adjustment of status or immigrant visa petition before August 2, 2002. Third, the child must “seek to acquire” permanent residence within a year of a visa becoming available. “Seek to acquire” means (1) having filed a Form I-824 Application for Action on an Approved Application or Petition, or (2) a Form I-485 Application to Register Permanent Residence or Adjust Status, or (3) a Form DS-230 Application for Immigrant Visa and Alien Registration from the Department of State. This one-year period is counted from the first day of the month in which the visa was available in the Department of State’s visa bulletin.

In certain circumstances, a person can apply for permanent residence outside of this one-year period if all four of the following criteria are met. (1) The person was a beneficiary of a visa petition that was approved before August 2, 2002, and the person filed for permanent residence after August 2, 2002, and (2) the person would have been considered a child under CSPA requirements, and (3) the person applied for permanent residence within one year of visa availability, and (4) the person’s application was denied solely because of aging out.