Filing a Green Card for Dependent Children: CSPA Concerns

Filing a Green Card for Dependent Children: Utilizing the Child Status Protection Act

The USCIS allow some protections for children who are close to the “aging out” as a dependent derivative through the Child Status Protection Act. The Child Status Protection Act (CSPA) defines a “child” as an individual who is unmarried and under the age of 21. Once a child turns 21, he or she is no longer eligible for immigration benefits based on the relationship to the parent. This is known as “aging out.”

The CSPA covers most immigrant petitions. Under the CSPA, a child’s age essentially freezes on the date the I-140 petition is filed until the date the I-140 petition is approved. This helps protect the child of an individual applying for a green card from aging out, as long as the I-140 petition was filed before the child’s 21st birthday. Once the I-140 petition is approved, the child’s age unfreezes and he or she must seek to acquire permanent residence within one year of a visa becoming available.

The date that a visa becomes available is the later of (a) the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates the availability of a visa for that preference category or (b) the petition approval date if a visa number is already available on the approval date.

Dates for Filing Versus Final Action Dates Chart

While an adjustment applicant may choose to file an adjustment application based on the Dates for Filing chart, USCIS uses the Final Action Dates chart to determine the applicant’s age at the time of visa availability for CSPA age calculation purposes. Age at time of visa availability is the applicant’s age on the first day of the month of the DOS Visa Bulletin that indicates availability according to the Final Action Dates chart. 

An applicant who chooses to file an adjustment application based on the Dates for Filing chart may ultimately be ineligible for CSPA if his or her calculated CSPA age is 21 or older at the time his or her visa becomes available according to the Final Action Dates chart.

CSPA Age Calculation

To determine the age of the child on the date that a visa number becomes available you first need to make the following calculation:

  1. First, you calculate the days the immigrant petition was pending with the USCIS.
    • Example: The I-140 was filed on January 1, 2018 and approved on August 30, 2018. Using an online time calculator, you can see that the petition was pending for 34 weeks and 2 days or a total of 240 days.
  2. Next, you subtract the period the immigrant petition was pending from the age of the child. That becomes the child’s CSPA age.
    • Example: If the child was 20.5 years old when the petition was filed, you would subtract 240 days from their real age to get their CSPA age of 19.84 years.
  3. If the visa number becomes available while the CSPA age of the child is under 21, then the child is eligible to obtain the immigration benefit by applying for permanent residence status within one year of eligibility.
    • Example: Even though the child turned 21 prior to the I-140 approval, they would still be eligible for permanent residence if the visa bulletin shows a visa is available within the 240 days allowed for processing under the CSPA. In this example, the visa must be available before the end of April in 2019.
  4. If the CSPA age of the child is over 21 when a visa number becomes available, then the child cannot apply for permanent residence.
    • Example: Upon approval of the I-140, the child’s age “unfreezes.” If there was no visa available per the visa bulletin for child in the example above until 1.5 years after the I-140 approval, the individual’s CSPA age would be 21 years old. They would not be able to apply for permanent residence using their parent’s employment-based immigrant visa status.

Another way to view this calculation is to take the 21st birthday, add the number of days the immigrant visa petition was pending and you get the CSPA 21st birthday or the deadline for applying for permanent residence. The child must take the next step by filing an I-485 or DS-260 within one year of visa availability.

On the date of the immigrant visa or I-140 approval, CSPA un-freezes the child’s age. If there is no visa available, it is possible the child will still age out if they are unable to file DS-260 or I-485 per the visa bulletin.

Changing Visa Categories by Filing a New I-140

The CSPA applies to the “applicable” petition only, which previously meant that it could be challenging to use a new I-140 to protect a child from aging out. While a child may have been protected by a pending I-140 (filed prior to the child’s 21st birthday) and the priority date of the primary applicant is still recaptured with a new I-140, the filing would need to clearly argue that CSPA protection should be applied to the new petition as the “applicable” petition being used to adjust status. Since the provision was not clearly outlined, the attorney had to argue that the “applicable” petition should include the new I-140 under which you are adjusting status, but was risky to proceed if the child was protected by the old I-140 petition and may age out with the filing of the new petition.

However, USCIS clarified this issue in November 2020 with a Policy Memo update in the CSPA section. The Policy Manual now states that “If an applicant has multiple approved petitions, the applicant’s CSPA age is calculated using the petition underlying the adjustment of status application.” The update also included an example to clarify:

An applicant is listed as a derivative on an approved Form I-140 filed by his or her parent’s employer. The employer rescinds the parent’s job offer, but the parent receives a job offer from a second employer. The second employer files a new Form I-140 for the parent, and the applicant is listed as a derivative on this second approved Form I-140. The parent files an adjustment of status application based on the second Form I-140 and is approved.

The derivative applicant’s CSPA age is calculated using the petition underlying the principal beneficiary’s adjustment of status application, in other words, the second Form I-140. The derivative may be eligible to retain the priority date from the first Form I-140, but the CSPA calculation uses the second petition, because this is the petition through which the principal beneficiary obtained adjustment of status.

If you file a new I-140, the child’s CSPA age would be calculated using the petition that is supporting the adjustment of status application. Essentially this lets individuals filing a new downgrade I-140 petition to choose the longer pending petition when determining in which category to adjust status. Please contact an attorney to discuss the benefits of filing a downgrade and determine the best strategy for protecting your child’s CSPA age.

What happens if the Visa Bulletin retrogresses after the I-485 has been filed for the child who is close to aging out?

The USCIS Policy Manual states:

If an eligible adjustment applicant filed an adjustment application but the visa availability date subsequently retrogresses, USCIS holds the application until the visa becomes available again and the application can be adjudicated.

If the applicant filed an adjustment application based on the Final Action Dates chart, and his or her CSPA age at the time of filing the application was under 21, then the applicant’s CSPA age is locked in through final adjudication of the application. However, if the applicant filed based on the Dates for Filing chart, the applicant’s age is not immediately locked in at the time of filing. Rather, the applicant’s CSPA age is calculated and locked in when his or her visa becomes available according to the Final Action Dates chart.

Note: the applicant must remain unmarried through final adjudication and must also seek to acquire an immigrant visa or green card within 1 year of availability.

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