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Enacted August 6, 2002, The Child Status Protection Act
(CSPA) changes the definition of "child" for purposes of
determining immigration benefits, and protects many sons and daughters of
US citizens and permanent residents from losing
these benefits when they turn 21 (also known as "aging
out").
Aging-out refers to a beneficiary losing
immigration benefits upon turning 21. For example, an "aging out"
beneficiary of an I-130 filed by US citizen is automatically transferred
from the "immediate relative" classification to the "Family
First" preference classification. Likewise, an "aging
out" beneficiary of an I-130 filed by a permanent resident is
automatically transferred from the "Family 2A" preference
classification, to the "Family 2B" classification. The
affects change in classification has an profound impact on when, and even
if, that beneficiary may immigrate to the U.S.
Under prior law, when a beneficiary of a
Petition for Alien Relative (Form I-130) to turned 21 prior to a grant of
adjustment of status or an immigrant visa admission into the U.S., that
beneficiary would be automatically transferred to a different
classification of relative, without regard to processing
delays.
The CSPA amends the law in one important
respect. It factors in processing delays in determining when an I-130 beneficiary ages out.
There are different applications of the
law, depending upon the immigration status of the I-130 petitioner (i.e.,
the beneficiary's parent).
The beneficiary of an I-130 filed by
his/her U.S. citizen parent prior to the beneficiary's 21st
birthday will continue to be considered a child for
immigration purposes even if the USCIS does not act on the petition before
the child turns 21.
The beneficiary of an I-130 filed by
his/her permanent resident parent prior to the beneficiary's 21st
birthday will preserve his/her classification according to the following
formula: the beneficiary's age is determined by taking his/her age
at the time the priority date is current (or the I-130 is approved
whichever is later), and subtracting the number of days the I-130 was
pending. In addition, the beneficiary must seek to acquire the status
of a lawful permanent resident within one year of visa availability. (This
provision also applies to derivative beneficiaries on family-based and
employment-based petitions.)
For a more detailed explanation of the
CSPA, a good source is H.R.
1209 – The Child Status Protection Act, August 7, 2002, and The
Child Status Protection Act, September 20, 2002.
FOR MORE INFORMATION:
Contact John Byrley at
tel: 410-719-1501.
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