Under the Immigration and Nationality Act, a child is a person, who is under 21, unmarried, and who:

  • Was born in wedlock;
  • Is a step-child, so long as the child was under 18 at the time the parent/step-child relationship was formed;
  • Was born out of wedlock, and in the case of a father a bona fide parent-child relationship exists; and
  • Was adopted before turning 16 and lived with their adoptive parents for at least two years. If the family has already adopted a sibling, then subsequent children should be adopted before turning 18.

Why Does Age Matter?

Age matters because when a child turns 21 during the pendency of an immigration petition, it can affect which ‘category’ the child falls under, and thus how long they must wait to obtain their green card.

For example, a United States citizen father files an I-130 for his step-son, who is 20.5 years old and from Mexico. While the I-130 is pending, the step-son turns 21. At 20.5 years old, the son is an ‘Immediate Relative,’ and immigration can process his green card application as soon as his I-130 is approved. As a 21-year-old, he is an ‘Unmarried Son or Daughter of a U.S. Citizen,’ and is now a first-preference category applicant. The backlog on that category for Mexican nationals is approximately 22 years.

The Child Status Protection Act aims to protect children from ‘aging’ out of a preferable category. The CSPA does not change the definition of a child under the INA. However, it provides a way to ‘freeze,’ or calculate someone’s age in such a way as their ‘CSPA age’ may be under 21. The CSPA calculations do not change the requirement that the ‘child’ remains unmarried.

Who does the CSPA Protect?

The following applicants can avail themselves of the protection of the CSPA:

  • Immediate relatives;
  • Preference category applicants and their derivatives;
  • Violence Against Women self-petitioners and their derivatives;
  • Employment-based derivatives;
  • Diversity Visa derivatives; and
  • Derivative asylees and refugees.

CSPA Rules for Family Based Applications

Immediate Relatives- The date on which the I-130 is filed ‘freezes’ an immediate relative’s age. Thus, in the example above, the stepson’s age would be ‘frozen’ at 20.5, even if the I-130 were not approved until after he was 21.

Preference Based Categories- To calculate the ‘age’ of a child in a preference-based category, you must know when the I-130 was filed and when it was approved.

To calculate one’s CSPA age, you take their ‘age at the time of visa availability’ – ‘Time I-130 was pending.’

The ‘age at the time of visa availability’ is the later of (1) the date the petition was approved, or (2) the first day of the month in which the priority date became current in the visa bulletin.

‘Time I-130 was pending’ = Approval Date – Filing Date.

Seek To Acquire– Lastly, to benefit from the CSPA, an applicant must ‘seek to acquire’ their lawful permanent resident status within one year of their visa becoming available. Seeking to acquire typically includes filing for adjustment of status (Form I-485), filing for an immigrant visa abroad (Form DS-260), or filing Form I-824.

If you are a child or have a child who is danger of ‘aging out,’ please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, have extensive experience with family-based petitions and the CSPA rules. Please feel free to call us at (510) 491-0291 to see how we can help!