In immigration law, “aging out” refers to the situation where children beneficiaries of certain immigrant petitions lose their eligibility for immigration benefits because they turn 21. Many immigration benefits, particularly those related to family-based visas, are designated for “children,” often defined as unmarried individuals under the age of 21.
As these immigration processes can be lengthy, some children reach age 21 before the process is finalized, thus “aging out” and potentially losing their chance for permanent residency.
What Is the Aging Out Law Today?
To address the issues presented by the aging-out phenomenon, Congress enacted the Child Status Protection Act (CSPA) in 2002. This act doesn’t necessarily change the age limit but instead provides a formula to calculate the “immigration age” of the beneficiary, which might still classify them as a child even if they are technically over 21. The CSPA can effectively freeze the child’s age under certain circumstances, allowing them to continue the immigration process as if they were still under the age limit.
Who Qualifies for Aging Out Protection?
The protections of the Child Status Protection Act apply to specific categories of immigrants:
Family-Sponsored Immigrants
The Child Status Protection Act recognizes the delays that often plague the immigration process. For family-sponsored immigrants, the CSPA offers a reprieve by allowing a “deduction” of sorts. Specifically, the time the visa petition was with the USCIS and pending approval can be subtracted from the child’s age when determining eligibility. For example, if a child’s visa petition took two years to be approved and they are 23 when a visa becomes available, their “immigration age” would be considered 21 (23 – 2), allowing them to still benefit as a child under immigration laws.
Derivative Asylum Seekers and Refugees
Asylum and refugee statuses are protective mechanisms for individuals fleeing persecution. When a parent is granted such a status, it inherently acknowledges the potential risks the family might face if returned to their home country. With this in mind, children can derive this status from their parents.
However, the prolonged processing times might mean some children turn 21 before their statuses are finalized. In such instances, the CSPA acts as a protection, ensuring that these young adults aren’t penalized for administrative delays and can still derive their statuses from their parents.
Diversity Visa Recipients
The Diversity Visa Lottery is a unique program that provides immigration opportunities to nationals from countries with historically low numbers of immigrants to the U.S. Children of lottery winners are typically eligible to receive visas alongside their parents. However, the period between the lottery win and visa issuance can be lengthy. If a child turns 21 during this interim, the CSPA steps in. It essentially “freezes” the child’s age, ensuring they can still accompany their parents and realize the dream of U.S. residency.
Derivative Beneficiaries of Employment-Based Petitions and Other Categories
The U.S. values skilled workers and those who contribute significantly to various sectors of the economy. Often, these people wish to bring their families, including their children, to the U.S. While primary beneficiaries of employment-based petitions navigate the immigration process, delays might cause their children to age out.
Recognizing this, the CSPA extends its protection to these children as well, ensuring that they can benefit from the opportunities the U.S. offers without being negatively impacted by prolonged processing times.
FAQ: Understanding the Child Status Protection Act (CSPA)
Below, we’ll answer some frequently asked questions about the CSPA.
1. What Is the Primary Aim of the Child Status Protection Act (CSPA)?
The CSPA was enacted to protect children beneficiaries of certain immigrant petitions from “aging out” or losing their eligibility for immigration benefits due to lengthy processing times. It provides a way to calculate a child’s “immigration age,” which may still qualify them as a “child” for immigration purposes even if they’re technically over 21.
2. How Do I Know If My Child Is Protected Under the CSPA?
Eligibility for CSPA protection varies depending on the type of immigration application. Key categories include family-sponsored immigrants, derivative asylum seekers, diversity visa recipients, and some employment-based petitions. Consult with an immigration lawyer to determine your child’s specific eligibility.
3. Are There Fees Associated with Applying for CSPA Protection?
Yes, there are fees associated with applying for CSPA protection. According to the USCIS website, the non-refundable visa application processing fee for CSPA protection is $325. This fee applies to all forms used to file a petition for a child under the CSPA, such as Form I-130, Form I-360, Form I-140, Form I-526, Form I-589, or Form I-730. The fee is non-refundable even if the petition is denied or withdrawn.
The fee is paid when filing the petition or when the visa becomes available. The fee can be paid online using a credit card or by mail using a check or money order. The fee can be waived if the applicant meets certain criteria, such as being a refugee or asylum applicant, having a pending asylum application, or having a pending adjustment of status application.
4. Can My Child Work or Study in the U.S. While We’re Waiting for a Visa Under the CSPA?
This largely depends on the child’s status in the U.S. If the child already has a valid status, such as a student visa, they can continue their education. For work authorization, it may be contingent on the type of visa or pending application.
5. What Happens If My Child Marries Before Our Immigration Process Is Completed?
Marriage can affect the eligibility of a child under the CSPA, especially for family-sponsored immigrants, where being “unmarried” is a criterion. If a child marries, they might no longer qualify under certain categories. It’s best to discuss such changes with an immigration lawyer to understand potential impacts.
6. How Does the CSPA Affect the Diversity Visa Lottery Winners?
For children of Diversity Visa Lottery winners, the CSPA can “freeze” the child’s age between the period the lottery is won and when the visa is issued. This ensures that if a child turns 21 during this time, they can still accompany their parents to the U.S. under the provisions of the lottery.
7. Is the CSPA Applicable to Adopted Children?
Yes, adopted children can also benefit from the CSPA protections. However, specific rules might apply based on the nature of the adoption and the visa category.
Some specific rules that might apply based on the nature of the adoption and the visa category are:
- The adoption must meet the Hague Intercountry Adoption Convention requirements, depending on whether the child was adopted in a country that is a party to this convention or not. These requirements include having a valid final adoption, legal custody for emigration and adoption, and a certificate of adoption issued by the competent authority of the foreign country.
- The visa category must match the type of relationship between the adoptive parent and the child. For example, if the adoptive parent is a U.S. citizen, the child may qualify for an immediate relative visa (IR-1) or an immigrant visa (IV) based on an adoption. If the adoptive parent is not a U.S. citizen, the child may qualify for an immigrant visa (IV) based on an adoption.
- The adoptive parent must comply with all state pre-adoption requirements, if any, in their residence. These requirements may include background checks, home studies, or other evaluations to ensure that the adoptive parent is suitable to provide a safe and nurturing environment for the child.
- The adoptive parent must obtain a Hague Adoption Certificate or a Hague Custody Certificate from the competent authority of the foreign country where the adoption took place. These certificates are required to prove that the adoption was valid and that there was no prior legal parent-child relationship between the child and either of their biological parents.
8. Can CSPA Benefits Be Transferred or Extended to Other Family Members?
No, the CSPA specifically addresses the issue of aging out for children beneficiaries in immigrant petitions. Its benefits are designed for those children and cannot be transferred or extended to other family members, such as siblings or cousins.
9. If My Child Has Already “Aged Out” Before the CSPA Was Enacted, Can They Still Benefit from the Act?
The CSPA is not retroactive for all cases. This means that for children who had already aged out before the act’s enactment in 2002, the protections might not apply. However, specific situations or nuances in individual cases might offer some relief. Such as:
- The child was adopted by a U.S. citizen or permanent resident before the act’s enactment and was under 21 years of age on the date of adoption.
- The child was adopted by a U.S. citizen or permanent resident after the act’s enactment and was under 21 years of age on the date of filing a petition for a child under the CSPA.
- The child was adopted by a U.S. citizen or permanent resident after the act’s enactment and was under 21 years of age on the date of filing an application for adjustment of status under the CSPA.
- The child was adopted by a U.S. citizen or permanent resident after the act’s enactment and was under 21 years of age on the date of filing an application for asylum or withholding of removal under the CSPA.
- The child was adopted by a U.S. citizen or permanent resident after the act’s enactment and was under 21 years of age on the date of filing an application for cancellation of removal under the CSPA.
- The child was adopted by a U.S. citizen or permanent resident after the act’s enactment and was under 21 years of age on the date of filing an application for cancellation of removal under the CSPA.
- The child was adopted by a U.S. citizen or permanent resident after the act’s enactment and was under 21 years of age on the date of filing an application for cancellation of removal under the CSPA.
- The child was adopted by a U.S. citizen or permanent resident after the act’s enactment and was under 21 years of age on the date of filing an application for cancellation of removal under the CSPA.
Do I Need an Lawyer?
If you or a family member are nearing age 21 and are concerned about aging out, consult a legal professional. A citizenship lawyer can guide you through the provisions of the CSPA, helping ensure you maximize your chances of obtaining permanent residency.
LegalMatch can be a valuable resource in this journey, connecting you with a seasoned immigrant lawyer to assist with your needs. Don’t handle your case alone; let LegalMatch pair you with the right lawyer.
