(Part 1 of 3 series)
WAS your child denied a visa because he or she already aged out or reached 21 years old at the time of the visa application? Your aged-out child may still be eligible to apply for an immigrant visa or adjust status to a permanent lawful resident under the provisions of the Child Status Protection Act (CSPA).
This Q&A aims to give readers an overview of CSPA, with the hope that those who have aged-out children may be able to better understand its provisions and how it can be of benefit to them. The next two parts of this series will cover common scenarios where CSPA may or may not apply.
Q: What is the purpose of CSPA?
The main purpose of CSPA is to provide immigration relief to individuals who were classified as children, as the term is defined under the Immigration and Nationality Act (INA), at the time the immigrant petition was filed, but who have already turned 21 or over at the time the visa becomes available. Prior to CSPA, a derivative beneficiary of immigrant parents who was already 21 at the time the visa became available would no longer be eligible to immigrate with their parents. CSPA provides relief by: 1. allowing the aged out beneficiary to retain classification as a "child" and be able to obtain immigrant visa with his parents; or 2. automatically converting the aged-out beneficiary’s petition to the appropriate category and retaining the original priority date of the parents so that he can reunite with his parents more quickly.
Q: Who is considered a child under the INA and what is the significance of retaining this classification?
To be considered a child under the INA, the individual must be unmarried and under the age of 21. A son or daughter of a parent who is the beneficiary of an immigrant petition may qualify as a derivative beneficiary and obtain an immigrant visa together with the parent if he or she qualifies to be classified as a child.
Q: How can my aged-out son or daughter retain classification as a child under CSPA?
CSPA provides that a derivative son or daughter retains classification as a child if his or her CSPA age is below 21. CSPA age is determined by deducting the amount of time the immigrant petition is pending with the US Citizenship and Immigration Services (USCIS) from the individual’s age on the date the visa number becomes available.
Q: What happens if my aged-out child’s CSPA age is 21 or over?
If your son or daughter’s CSPA age is 21 or over, he or she will no longer be eligible to obtain a visa with you as your derivative child. However, he or she may be eligible to request for retention of your priority date under CSPA. You may file an immigrant petition on behalf of your aged-out son or daughter and request that the original priority date of your petition be applied to your son or daughter to avoid the lengthy wait for a visa.
Q: Does CSPA cover both immigrant petitions and employment-based petitions?
Yes.
Q: If my aged-out son or daughter is not eligible to qualify under CSPA, is there any other benefit available to him or her based on the immigrant petition?
If the immigrant petition was filed on or before April 30, 2001, it may be used to adjust to permanent resident status under INA 245i if your son or daughter is unlawfully present in the United States and is the beneficiary of an approved employment-based petition.
Learn more about CSPA next week and find out if your aged-out child may still qualify for permanent residence. You may call Bander Law Firm, LLP at 213-873-4333 or email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it to schedule your free initial consultation.
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Atty. Joel R. Bander is the partner of Bander Law Firm, LLP. With over 15 years of litigation and immigration experience, Mr. Bander is a leading litigator and accomplished trial strategist. He has successfully handled numerous cases before Federal, State, Civil, and Criminal Judges and has participated in hundreds of arbitrations and trials.
Bander Law Firm, LLP Downtown office address: 1055 W. 7th Street, Suite 1950, Los Angeles, CA, 90017. Tel: (213) 873–4333 Fax: (213) 873–4334. San Gabriel Office address: 1045 E. Valley Blvd., #A215, San Gabriel, CA
( Published on January 17, 2009 in Asian Journal Los Angeles p. C2 )
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