The Child Status Protection Act (CSPA) allows a child to retain his/her classification as a child even though he/she has reached 21 in certain conditions. If a U.S. citizen petitions for a child before he/she reaches 21, the Immigration Service will consider that the child for immigration purposes remains a child until he/she is issued permanent resident status. The defining act on a citizen’s petition for a child is that the child be under the age of 21 when the citizen applies, not when the petition is approved.
For permanent residents’ petitions the new regulations allow a child who had an approved alien relative petition prior to August 6, 2002 (the date the CSPA was enacted) to remain a child under the law if the priority date had become available after August 6, 2002 but before the child turned 21, even if the child had not applied for permanent residence within one year of the petition’s approval. It does not matter whether the child became 21 before or after August 6, 2002. Apparently the Immigration Service feels responsible for misleading advice and is willing to help those children who through this misleading advice failed to file for adjustment of status within one year after their priority dates became current. This new regulation applies unless the applicant was given a final decision prior to August 6, 2002.
For citizen petitioners the child’s beneficiary will not age out if the petition was filed while the child was under 21.
For permanent resident petitioners, if the alien relative petition is approved and the priority date becomes current before the child reaches 21, the child will then not age out. This child must now apply for permanent residence within one year of the priority dates becoming current.
For derivative beneficiaries, viz., children of principal aliens, the child’s age is based on when the principal alien’s visa becomes current. The child’s age is calculated by subtracting the number of days that the immigrant visa has been pending from the child’s actual age on the date the visa became current. If the applicant is under 21 under this calculation, the applicant remains a child until he/she becomes a resident. The child must also apply for permanent residence within one year of the priority date being current.
MOTION TO REOPEN FOR DENAILS BASED ON AGE
Without a filling fee a motion to reopen may be made:
- If an alien relative petition was approved prior to August 6, 2002 for a child even though the adjustment of status application was filed after;
- Under the new CSPA rules referred to above the applicant should be calculated as under age 21 if the applicant was under 21 when the visa numbers were current:
- The applicant applied for permanent residence within one year of the priority date being current;
If the applicant was denied solely because he/she aged out, there is no deadline on a motion to reopen.
If you have a question regarding these new guidelines, please call us or send us an email.