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How the CSPA Helps Family

How do CSPA Benefits Relatives and Derivative Beneficiaries with Family-Based Preference?

Children’s eligibility for a green card is no longer endangered when they reach the age of 21 as it used to be. Please find out more about it here.

Before the Child Status Protection Act, turning 21 was a significant source of concern for immigrant children (CSPA). Before the passing of the Immigration and Naturalization Act in 2002, many children with awaiting immigrant pleas “aged out” (that is, lost their qualifications or were forced to switch to a slower, less advantageous visa category) if a visa didn’t really become available prior their 21st birthday if no visa was available. Unexpectedly long wait times are frequent, particularly because of annual visa restrictions and, as a result, typically prolonged green-card wait times for unmarried, under-21 kids of permanent legal residents in the United States.

The age of the kid on the date that the U.S. Citizenship and Immigration Services (USCIS) received the visa application, in contrast to his or her age on the date that a visa became attainable, is considered relevant after the CSPA.

This article will discuss whether and how you can take full advantage of the CSPA unless you are one of the following categories of people:

  • The petitioner must be a U.S. legal resident who has filed a family-based petition for the child (on Form I-130), or
  • A U.S. national pursuing an I-130 petition on behalf of a family member in which their own child has been named a derivative beneficiary.

If you are a citizen of the United States (or a legal resident who intends to become a resident in the near future) and you want to bring your foreign-born child to the United States, check out How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens for information that is more relevant to your situation.

How Can Permanent Residents Sponsor Green Cards for their Children?

First, let us go over some fundamental concepts in immigration law. To apply for their kids (under 21) and unmarried sons and daughters (over 21) as “family-based” immigrants, lawful permanent residents (LPRs) must file Form I-130, Petition for Alien Relative, with the United States Citizenship and Immigration Services (USCIS). (For a more detailed description of this application process, see Filling Out and Submitting Form I-130 for Unmarried, Minor Child.)

While the terms “children” and “sons and daughters” may sound similar, they are two distinct categories based on whether or not the individuals are under 21. Suppose you look at the Department of State’s Visa Bulletin. In that case, you will notice that the children of LPRs are classified as visa preference category “F2A.” The sons and daughters of LPRs are classified as “F2B” individuals.

 

Because of the significant disparities in average wait times across these categories, they are critical in considering the CSPA. In recent years, category F2A passengers have had little or no wait times at all. However, because F2B is nearly always subject to a waiting period of at least five years, you will want to avoid getting your child “age out” and be pushed to the F2B preference category by applying early.

(Take a look at the Visa Bulletin for the available dates.) They state that those whose I-130 applications were first filed one day before the stipulated deadline are only now eligible to complete the application procedure and get their green cards.)

How does the CSPA Affect Child I-130 Petitioners by submitting a document?

Permanent Residents

As a permanent resident who did not include your small (under-21) kid as a derivative beneficiary when you first obtained your green card (or if your child lost his or her green card due to excessive travel abroad and abandonment of U.S. residency), you may be able to file Form I-130 under preference category F2A if you meet the requirements. The CSPA eliminated the requirement that if your child reached the age of 21 before a visa application could be processed, he or she be changed to category F2B immediately. As you can see, this resulted in a significantly lengthier wait for a green card, even though the child had done nothing wrong.

The CSPA, on the other hand, ensures that a child’s I-130 petition is guarded if the applicant “seeks to acquire” the green card within one year of a visa that has become available. It can be accomplished by filing Form I-824, Application for Action on an Approved Application or Petition, or, if your child is already legally present in the United States, Form I-485, Application to Register Permanent Residence or Adjust Status. To obtain a visa, you must have a current priority date, as discussed further in detail below; keep in mind that only the “Final Action Dates” listed in the Visa Bulletin are taken into consideration in this process, instead of the “Application Filing Date,” which enables some people to submit their application slightly earlier, before a visa is available.

You can ascertain whether or not your son or daughter is still deemed a “child” under the CSPA by looking at the “priority date” (the day USCIS received your Form I-130) and performing a few simple calculations. As long as you apply for permanent residence within a year of receiving approval of the Form I-130 you submitted on behalf of your child. The priority date becomes effective before your child becomes 21; your child is protected under the Children’s Safeguards Act.

But what happens if your child reaches the age of 21 and your Form I-130 has not been authorized, or the priority date has not yet been updated? Will the CSPA provide adequate protection for your child? Unfortunately, you will have to “wait and see” in this situation. Ensure that you check the Visa Bulletin every month to confirm that you have the most up-to-date priority date. (Can you tell me how long it will take for your priority date to become current?) can assist you with this task.) If such is the case, it is time to run some calculations to see if the CSPA can help you.

Consider the following scenario: your child was born on November 30, 1999. As a result of the date on which the United States petitioner filed the I-130, he or she has a priority date of August 15, 2020. After that, let us assume that a visa becomes available for your kid in the Visa Bulletin for August 2021. You would first have to figure out how old your child was in days on the first day of the month in which the Visa Bulletin was published (in this case, August 1, 2021). Using a date-to-date calculator, you can accomplish this quickly and easily: It has been 7,915 days (or 21 years, 8 months, and 2 days).

To calculate your child’s age, subtract the number of days your I-130 was pending at USCIS from your kid’s age. To get the number of days pending, use the date-to-date calculator once more to determine the number of days that have elapsed between the priority date and the date of the Visa Bulletin. In this scenario, you had to wait 352 days (11 months and 18 days) for a visa to become available before you could go. In other words, your child’s CSPA age is about 20 years and eight months, which means he or she is protected by the CSPA and may now file Form I-824 (if he or she is outside the United States) or Form I-485 (if he or she is legally present in the United States) for a green card. ”

In what ways does the CSPA affect child derivative beneficiaries of the family- and employment-based immigration petitions?

Children derivative beneficiaries of other family-based petitions can also be protected by the CSPA, ensuring that they can continue to be included in their parents’ claims even after they would have “aged out” in the past under the previous law.

For example, suppose you are a citizen of the United States. In that case, you can petition for a green card on Form I-130 on behalf of your unmarried or married sons and daughters, as well as your siblings who are citizens of the United States. In these petitions, it is possible to include derivative beneficiaries as well (namely, your grandchild, niece, or nephew). Except that you will be evaluating Visa Bulletin preference categories “F1,” “F3,” and “F4”, the same instructions and calculations that were provided in the preceding section will apply to you.

The CSPA also relates to child derivative beneficiaries of employment-based visa petitions filed using Form I-140, Petition for Alien Worker, filed with the Department of Homeland Security. More information on applying can be found at Completing the Form I-140 to Sponsor an Immigrant Worker. As a general rule, “aging out” does not present a problem for priority workers, particular immigration recipients, and religious employees; but, it can be a significant problem for petitioners in other priority categories, particularly for petitions from China India, Mexico, or the Philippines. You can also use the Visa Bulletin to compute “CSPA age” for children’s derivatives in employment-based petitions. However, the calculation will be slightly different from the previous method. The priority date that you will utilize will be determined by whether or not labor certification was needed at the time of filing. If this is the case, the date on which the labor certification was filed is your priority date. Alternatively, you might use the date on which Form I-140 was received.

Some permanent residents are permitted to “opt-out” of the CSPA.

LPRs who have filed Form I-130 on behalf of their unmarried son or daughter are also permitted to “opt-out” of (say no to) having their application changed to preference category F1 if they obtain citizenship before a visa becomes available under the CSPA. You might be confused as to why you would ever choose to “opt-out” of one of the many benefits open to residents of the United States. However, strangely enough, the F1 category for unmarried sons and daughters of LPRs is frequently overcrowded than the F2B category for unmarried sons and daughters of LPRs.

When an LPR with a pending I-130 naturalizes, the CSPA effectively permits him or her to select the category in which a visa is available sooner rather than later. If this is the case for you, the beneficiary child will be required to tell USCIS in writing if he or she wants to continue to be classified as an F2B.

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