In most cases the child is considered to have aged out of the F-2A subcategory and proceeds to fall under the F-2B category which depending on the region of the world likely will result in a substantial increase in waiting period. However, Congress created a law in an attempt to protect certain children from aging out known as the Child Status Protection Act, (“CSPA”). CSPA created a method in calculating a person’s age to see if they continued to meet the definition of a child under Immigration Law. An unmarried child who is 21, can still be considered a child under CSPA if the CSPA calculation places the child’s CSPA age under 21 years of age. The CSPA age is determined by taking the amount of time it took for the I-130 petition filed for the child to be processed and approved and subtracting that period of time from the beneficiary’s age. CSPA protection applies to cases where an individual is trying to stay within the F-2A category or an individual who is trying to continue as a derivative child of a parent beneficiary of an I-130 petition.
For example, let us say that there is an individual that turned 21 years old today. Without the benefits of CSPA protection, today that former child aged out meaning that the individual would be placed in the F-2B category incurring a substantially longer wait period. However, with the aid of CSPA protection this change in category may be avoided. When looking at the individual’s I-130 petition you see that it was filed on November 1, 2019 and approved on May 1, 2019. Calculating the period of time from filing to approval, you calculate it took 6 months to approve the I-130 Petition. You then take the 6 months and subtract it from the individual’s age so that the CSPA age is not 21 years, but now 20 years and 6 months for Immigration purposes. In this situation, the individual remains in the F-2A category and hopefully will either have the priority date ready to proceed to the next step or will have the priority date ready to proceed to the next step of the process before another 6 months pass causing age out even under CSPA protection. Also, keep in mind that once the priority date is current, an individual benefiting from CSPA protection will have one year assuming the individual doesn’t age out again, to proceed to the next step of the process or else the individual will lose CSPA protection. Regardless of your situation it is best to hire one of our experienced attorneys to guide you through every step of the process in order to place you in the best situation to benefit from CSPA protection or keep you from falling out from CSPA protection if possible.
Any protection for a child of a petitioning US Citizen who turns 21 years of age?
Fortunately, yes. CSPA provides additional protection for the child of a petitioning USC. CSPA actually freezes the age of a child once the Petitioning USC Parent files the I-130 petition. Meaning that even if the individual ages out, the individual will for ever be considered a child under 21 years of age based on the filing of the petition when the individual was under 21 years of age.
In this family based series of immigration blog posts you can find information on the following:
- Can my Family Members file a Green Card Application for Me? Can I get a Green Card through Family?
- How long will I have to Wait for My Green Card? What is the Visa Bulletin?
- How do I Begin a Family Based Green Card Case? What Do I have to Do to Get a Green Card Through Family? Adjustment of Status
- How do I Begin a Family Based Green Card Case? What Do I have to Do to Get a Green Card Through Family? Consular Processing
- What happens to child who turns 21 years old while waiting for a priority date? My Child is Waiting for a Green Card – What if my Child turns 21?
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