CSPA and Lawful Permanent Residents

For those children that have aged out or are about to age-out thanks to the most ludicrous U.S. immigration laws.Please DO NOT fail to see a lawyer and get an opinion about avenues to pursue family reunification ESPECIALLY if you are a beneficiary of Section 245i; you NEVER lose your Section 245i benefits. Stepping out of the country after you age out is an automatic 10 year ban that would NOT be waived unless you show extreme circumstances.

Children of Permanent Residents and Applicants for Permanent Residency The CSPA also covers the children of Legal Permanent Residents (LPR), and the children of the aliens who are in the process of filing immigration petitions. Two scenarios apply:

1. Children who have been directly sponsored by their LPR parents under the Family-based Immigration 2A category; and

2. Children who are accompanying or joining family-sponsored, employment-based, and diversity immigrant parents

· Determination of the Age of the Alien Child

In accordance with the CSPA, the age of the alien child is determined on the date on which an immigrant visa number becomes available, minus the number of days the petition was pending with the USCIS (formerly INS).

· Immigrant Visa Availability

Immigrant visa availability requires both a current priority date and an approved immigration petition. The Department of State publishes a Visa Bulletin every month. The current priority dates are applicable on the first day of every month. Therefore, the alien child’s age should be determined on the first date of the month that the priority date becomes current.

· Pending

“Pending” refers to the status of a case during the period of time starting when the I-130 or I-140 petition is filed with the USCIS until it is approved.

Therefore, the formula for calculating the age of the alien child involves two dates. One is the age of the alien child on the date on which an immigration visa becomes available (1); the other is the number of days the immigration petition is pending with the USCIS (2).

The age of the alien child = (1) – (2)

For example:

Jason is an LPR. He filed an immigration petition for his son, Sam, an alien child, when Sam was 18 years old. This petition was approved after it was pending with the USCIS for exactly 1 year (2). When the immigrant visa number became available for Sam, he was 21 years, 11 months old (1). Thus, Sam’s age for immigration purposes under the CSPA is determined by age (1) minus pending time (2). 21 years 11 months – 1 year = 20 years 11 months. Sam’s age is locked at 20 years 11 months old. Sam is still regarded as a “child” under the CSPA.

For another example:

Donald files an I-140 petition under the EB-1(A) “alien of extraordinary ability” category when his daughter Mary is 20 years, 11 months old. The case is approved after 6 months, and at that time, Mary is 21 years and 5 months old. Immigrant visa numbers are available at the time Donald’s immigration petition is approved. Mary’s age at the time is reduced by 6 months, which equals 20 years 11 months. As a derivative beneficiary of Donald’s immigration petition, Mary’s age is locked at 20 years, 11 months.

· Acquiring Permanent Residency

However, this provision applies only if the alien child has applied to acquire permanent residence within one year after the visa number becomes available.

Thus, in the above example, in order to take advantage of the CSPA Mary has to apply for adjustment of status (if she is in the U.S.), or apply for an immigrant visa (if she is abroad), within one year of the visa number becoming available.

· Retention of Priority Date

If the age of an alien is determined under the above calculation to be 21 years or older, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

For example:

The Labor Certification application that was submitted on John’s behalf on January 1, 2000 was approved on December 31, 2000. His employer subsequently submits an I-140 (EB-2) immigration petition on John’s behalf on January 1, 2002. At that time, John’s son, Junior, is 20 years and 7 months old. John’s I-140 petition is pending for six months and is finally approved on July 1, 2002, when Junior is 21 years and 7 months old. Visa numbers for EB-2 are available for John on July 1, 2002. Under the CSPA, Junior’s age is fixed as of the date that a visa number becomes available minus the number of days that the I-140 was pending. Because John’s I-140 was pending for six months, these six months must be subtracted from Junior’s age at the time the visa number became available (July 1, 2002). Subtracting six months from Junior’s age of 21 years, 7 months on July 1, 2002, Junior’s age is fixed at 21 years and 1 month. Even with the Child Status Protection Act, Junior still ages out and may not adjust his status at this time. However, he will automatically be reclassified to an appropriate category, family-based 2B, and retain his father’s original priority date, January 1, 2000, which is the date John’s employer filed John’s Labor Certification application.

Posted on by Prerna in Immigration