Question:
“I have a cousin who is 23 years old. His mother was born in India. Many years ago, she filed an immigration petition for him. Now, it’s time for him to finally complete his paperwork for a green card. We’ve been told that since my cousin is now over 21, he no longer qualifies. Someone else told me this is not true. Can you tell me who is right?”
(Submitted by Alex P., National City, CA)
Answer:
Well, it’s possible they’re both right. It depends on the facts of your cousin’s case.
The confusion between the two opinions appears related to a program known as the Child Status Protection Act (CSPA).
Under this law, some immigrants, who have already turned 21, can still qualify as children when it comes to seeking permanent resident benefits.
What Is The Child Status Protection Act?
The Child Status Protection Act enables permanent resident applicants to maintain “child” classification even after they turn 21. Known as the CSPA, the Act seeks to overcome long immigration processing delays. It freezes their age at 21, by a formula which subtracts the length of their wait in pending status.
The Aging-Out Problem For
Immigrant Children
Without going into too much detail, here is why the Child Status Protection Act was passed.
Sometimes, the government takes a long time to process the paperwork of immigrants. For children, these delays can cause them to lose their eligibility for green cards when they turn 21 years old. This is called “aging-out”. The Child Status Protection Act was designed to help correct this problem.
How The Child Status Protection Act Works
Under the CSPA, dates are very important. Hence, I’ll use imaginary dates to help explain the basic details how the program works.
- First, what is your cousin’s exact date of birth? Let’s use November 12, 1990.
- Second, when did his mother file the immigrant relative visa petition for him? Let’s pretend the date was August 4, 2005. This is the priority date.
- Third, when was the petition approved? Here, we will use February 4, 2007.
- From August 4, 2005 to February 4, 2007 is 18 months. This is considered the period of delay.
- You can add the 18 months to your cousin’s date of birth. This gives him an “adjusted date of birth” of April 12, 1992.
- Under this rule, he turns 21 on April 12, 2013.
- Now, let’s say his priority date to apply for a green card becomes “good” in October 2012.
- Under the Child Status Protection Act, because of his “adjusted date of birth,” he does not turn 21 until April 12, 2013. As a result, he is still under 21 in October 2012. For green card purposes, his mother’s petition for him as a child is still valid.
- Your cousin’s true age is 21 on November 12, 2011. This means in October 2012, he would be almost 22 years old. Without the help of the CSPA, he would be disqualified for a green card as a child.
CSPA Eligibility Criteria Issues
Please realize the above scenario is a very simple example.
The problem of aging-out affects many young immigrants.
Perhaps the Child Status Protection Act can assist your cousin.
To simplify, there were some issues I did not address. They could make a difference in how the CSPA is interpreted in your relative’s case.
Such questions include whether his mother was already a naturalized citizen or still a lawful permanent resident. And whether he is married or not.
In short, the CSPA is a complicated area of law.
And in recent months, there have been major changes to how the Child Status Protection Act applies to immigrants who fit into different categories.
Thus, I caution you to talk to an immigration expert about the specifics of your cousin’s case before going forward.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Green Cards And Permanent Residence Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
