How Does the Child Status Protection Act (CSPA) Benefit Immediate Relatives of U.S. Nationals?
When the recipient is the child of a permanent legal resident of the United States, turning 21 is a reason for worry; nonetheless, the immigration law provides some protections and rights.
The Child Status Protection Act (CSPA) was passed in 2002 to assist young people who have reached 21 years old when their green card applications were granted by the United States Citizenship and Immigration Services (USCIS) and the United States Department of State (DOS). Because of significant waiting times on the green card waitlist and regular processing times at the USCIS and the Department of Homeland Security, even if an application for a kid was filed well before the child’s 21st birthday, the child may “age out” by turning 21 prior the approval of the petition. People who had already applied for a green card had to wait even longer because of the “aging out” phenomenon. In certain cases, people who had applied for a green card in the past were no longer eligible for one.
This article’s main purpose is to discuss how the CSPA impacts immediate relative petitions filed by nationals of the United States for their kids who were under the age of 21 at the time of filing. In contrast, the rules for other family-based applicants and derivative beneficiaries of green cards under the CSPA are substantially more complicated, as stated in How the CSPA Supports Family-Based Preference Relatives or Derivative Green Cards Beneficiaries.
Check to Ensure Your Child Is Not Already the United States National
Suppose you are a national of the United States who wishes to bring your kid to the United States or legitimize the child’s status in the country. In that case, you can save yourself lots of time and work by first determining whether your child is already a national of the United States.
The laws governing who is eligible to obtain citizenship in the United States through their parents have evolved throughout time. In general, who qualifies for full citizenship depends on several circumstances, including the child’s date of birth, the parent’s time spent actually residing in the United States, and other considerations. More information about this can be found at Citizenship in the United States by Birth or Through Parents.
How the CSPA Assists Citizens of the United States in Bringing Children to the United States?
Immigration law offers priority to “immediate relatives” of U.S. citizens, who are defined as spouses and unmarried children under 21. The term “kid” refers to an unmarried individual under the age of 21 who is subject to the laws of the United States regarding immigration. These immigrants are not limited to the legislative restrictions on the number of green cards that USCIS and the Department of Homeland Security can grant each year. As a result, they do not have to wait significant periods before a green card becomes available to them, as do other immigrants.
The CSPA eliminated the requirement that even U.S. nationals file a Form I-130 petition well in advance of their kid’s 21st birthday to make sure that the youngster did not “age out” before USCIS could process the petition. Many children of citizens of the United States were forced to age out due to routine procedural delays.
As long as the Form I-130 is received by the United States Citizenship and Immigration Services (USCIS) at least one day before your child becomes 21, the USCIS will consider your child to be a “immediate relative,” even if they are 21 or older by the time the petition is officially authorized.
Strategy for Immediate Relative Petitions under the CSPA
To avoid lengthy processing times, U.S. citizens who wish to bring their children to the United States to live permanently should file Form I-130, Petition for Alien Relative, as soon as possible after the kid’s marriage and before the child reaches the age of 21. Due to this decision, these youngsters will not need to wait for an immigrant visa to become available. Please check the section entitled Filling Out and Submitting Form I-130 for a Child for further information on the application procedure.
Please keep in mind that, even if your child is below the age of 21 at the time of filing Form I-130, should that child marry before obtaining a green card, the petition will no longer be eligible as an “immediate relative” application. Unfortunately, your child’s marriage will result in a substantially lengthier wait for a green card in one of the “preferred” categories of U.S. immigration, as it falls under one of the “preference” areas.
If they get naturalized, permanent residents can switch children’s petitions to Immediate Relative petitions.
What should you do if you are a legal permanent resident (LPR) of the United States whose child is studying or working abroad? Under the CSPA, dependants of green card holders are not regarded as “immediate relatives,” which is a sad reality for many families. Suppose they were not included as derivatives at the time of your application for permanent resident status. In that case, they may take longer than expected in acquiring green cards. Consult the Visa Bulletin of the United States Department of State for the most up-to-date processing times for petitions in the family-based preference category “F2A.”
The CSPA provides some protection for them (see How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries for more information), but converting your immigrant visa petition to “immediate relative” would be an even better option. If you are a United States national before your Form I-130 is granted and your kid is under the age of 21 when you receive your naturalization certificate, this is a possibility. In this situation, your child’s age will be “frozen” on the day that you become a citizen of the United States. To get more information about it check out “How Naturalizing Aids Your Foreign-Born Children’s Immigration.”
There are various options when married children of U.S. citizens are widowed or divorced!
Even though they are under 21, married children of U.S. citizens are not considered “immediate relatives,” and they are processed as applicants for the family-based preference category. The visa petition can be converted to immediately related status if, however, the child’s marriage is dissolved before he or she turns 21. You must notify USCIS to do so. These kinds of circumstances are extremely unusual, yet they do occur.
Consider the following scenario: you have a daughter who is 18 years old and married. Two years have passed, and your daughter is now 20 years old, but she is divorced and has obtained an official divorce decree from the court. You can take full advantage of the CSPA’s “aging out” safeguards by telling the United States Citizenship and Immigration Services (USCIS) that she is no longer considered an immediate family. If you file Form I-130 now, your petition will be put in the “F3” family-based preference category, and you can anticipate waiting ten to twenty years for a visa to become accessible in this category. In addition, if your daughter’s husband passes away before she reaches the age of 21, you will be liable.
Unfortunately, there are no derivative beneficiaries for immediate relative petitions that can be named. That implies that if your daughter has a kid she would like to take to the United States, that kid would not be included in her application if you convert it.