CSPA Age Calculation
The U.S. immigration system often involves lengthy processing times, which can create challenges for family members who are seeking to immigrate together. Specifically, a foreign national who was eligible as a “child” for immigration visa purposes at the time of the filing of the immigrant petition might age out and consequently, be converted to a different visa preference category or even become ineligible to immigrant through the petition.
The Child Status Protection Act (CSPA), enacted in 2002, addresses this issue: the risk that children may “age out” of eligibility for certain immigration benefits due to turning 21. This article offers a brief overview of CSPA, introduces its calculation method, explains the "sought to acquire" requirement, and provides examples to illustrate its application.
CSPA age calculation and its application can be complex and confusing. We strongly recommend that you seek competent legal advice if you have any questions about CSPA and its possible application to your case.
A. CSPA Overview
Before the enactment of the CSPA in 2002, child beneficiaries who turned 21 while their immigration case was pending lost their eligibility to immigrate as “children” with their parents. This situation, commonly known as “aging out,” often forced families into a dilemma. Oftentimes, parents had to either leave their aged-out children behind or face prolonged separation while their children pursued a new immigration petition.
The CSPA mitigates this issue by freezing the child’s age under specific conditions. Although the CSPA does not cure age-out issues in all circumstances, it provides a form of relief in many family-based and employment-based immigration situations, including:
Family-based immigration: principal applicants and derivative applicants of family-based preference immigrant categories.
Employment-based immigration: derivative applicants of employment-based immigrant visa categories.
Diversity visa lottery: derivative beneficiaries of diversity visa lottery winners.
Humanitarian programs: derivative refugees, derivative asylees, and Violence Against Women Act (VAWA) self-petitioners and derivative applicants.
By providing a formula to calculate a child’s “CSPA age,” and freezing the child beneficiary’s age for immigration purposes, child beneficiaries are allowed to retain their status as “children” under immigration law, and immigrate together with their parents as a family even when they turned 21 biologically during the process.
B. CSPA Age Calculation
Generally speaking, determination under the CSPA involves a three-step process. The first step is to determine whether the CSPA applies to the case. CSPA, enacted on August 6, 2002, applies to cases involving a preference petition filed or approved after the enactment date. In other words, if your case falls under one of the applicable categories and is filed or approved after August 6, 2002, the CSPA may apply. Then, the second step is to calculate the child’s CSPA age using the specific age formula.
Generally, the formula is as follows:
Child’s CSPA Age = Child’s Biological Age at the Time of Visa Availability – Petition Pending Time
Determining Visa Availability Date
If an applicant has an approved immigrant petition and is waiting for visa availability, a visa becomes available on the first day of the month when the applicant’s priority date becomes current in the Department of State’s Visa Bulletin. If an applicant’s priority date is current in the Visa Bulletin when his or her immigrant petition is approved, a visa becomes available on the petition’s approval date.
Calculating Petition Pending Time
The petition pending time refers to the time the USCIS took to adjudicate the petition, which is the time from petition filing to petition approval. For example: a petition filed on March 1, 2023, and approved on March 1, 2024, has a pending time of 1 year (12 months). If you have an approval notice of your immigrant petition, you may subtract the “Received Date” from the “Notice Date” to calculate the petition pending time.
Calculating Child’s CSPA Age
Subtracting the “petition pending time” from the child’s biological age when a visa becomes available will result in the child’s CSPA age, if applicable. If the resulting age is under 21, then the child may be protected by CSPA, provided that other requirements for CSPA to apply are also met.
C. Sought to Acquire Requirement
Once a child’s CSPA age is determined to be under 21, the next step is to determine whether the child “sought to acquire” lawful permanent resident status (“green card”) within one year of visa availability. In other words, merely having a CSPA age that is under 21 is generally not enough to freeze the child’s age for immigrant purposes. In most cases, the child is also required to take action within one year when a visa first becomes available.
Actions that may be taken by child beneficiates to demonstrate their intent to acquire lawful permanent resident (LPR) status include, and are not limited to:
Properly filing Form I-485, Application to Register Permanent Residence or Adjust Status, with the USCIS;
Submitting a completed Form DS-260 (Immigrant Visa Application) with the Department of States;
Paying the immigrant visa fee to the Department of States; and
Properly filing Form I-824, Application for Action on an Approved Application or Petition, with the USCIS.
As a general rule, failure to take action within one year of visa availability may result in the loss of CSPA protections, barring applicable exceptions.
Broadly speaking, in the circumstances that the child beneficiary did attempt to file the required application within one year but it was rejected for procedural or technical reasons, the failure to satisfy the one-year requirement may be excused if the applicant filed the application within a reasonable period of time after it was returned. Further, the beneficiary may demonstrate that “extraordinary circumstances” prevented them from filing on time, provided that the circumstances were truly extraordinary and beyond the beneficiary’s control. Officers evaluate claims of extraordinary circumstances on a case-by-case basis and weigh the totality of the circumstances when adjudicating such claims.
D. Examples
Scenario 1: Family-Based Immigration
A U.S. lawful permanent resident father filed a Form I-130 for his unmarried son (date of birth: September 15, 2000) on February 15, 2020, when the son was 19 years and 5 months old. The I-130 was approved 2 years later on February 15, 2022. A visa first became available on March 1, 2023. At this point, the son’s biological age was 22 years, 5 months, and 14 days.
Son’s CSPA age is calculated as:
22 years, 5 months, and 14 days (Child’s Biological Age at the Time of Visa Availability) – 2 years (Petition Pending Time) = 20 years, 5 months, and 14 days (Child’s CSPA Age)
As a result, the son’s CSPA age is under 21 years old and would be eligible for CSPA protections if he sought to acquire LPR status within one year from the date of March 1, 2023, when a visa first became available to him.
Scenario 2: Derivative Beneficiary Under Employment-Based Immigration
The principal applicant, father, and a citizen of China, was the beneficiary of an approved I-140 petition for an employment-based, second preference (EB-2) immigrant visa. His daughter, born on July 3, 2001, was included as a derivative beneficiary on his green card application. The I-140 petition was filed on June 20, 2019, and approved on April 2, 2020. Due to visa backlogs in the EB-2 category for China, visa numbers first became available to the applicants on January 1, 2021. By this time, the daughter’s biological age was 19 years, 5 months, and 30 days.
Given that the daughter’s biological age was under 21 when a visa number first became available to her, she might not need to seek CSPA protections if she obtained an immigrant visa or adjusted her status to LPR status before she turned 21. In practice, however, she might still want to satisfy the “sought to acquire” requirement to freeze her CSPA age. This way, in the event that she is unable to obtain LPR status before she turns 21, she may seek protections under the CSPA.
E. Practical Tips
A "Child" is an Unmarried Individual Under 21: If a person is married, this person loses status as a “child” even if CSPA protections may apply.
Keep Track of Your Priority Date: Monitor the Visa Bulletin regularly to know when a visa becomes available to you.
Take Actions Promptly: Once a visa becomes available to you, take immediate steps to apply for an immigrant visa abroad, initiate contact with the National Visa Center, or file for adjustment of status if present in the United States.
Maintain Documentation: Keep thorough records of any circumstances that might impact your ability to meet any crucial deadlines.
Consult With an Experienced Immigration Attorney: Immigration laws are complex and constantly changing; and the CSPA age calculation and its application are complex and confusing. Consult and work with an experienced immigration attorney allows you to have the most up-to-date and detailed information and save you frustration in the process.
In conclusion, the Child Status Protection Act is a useful tool for families seeking to immigrate to the United States together. By freezing the ages of eligible children, it helps to ensure that families can stay together despite the long processing times. However, understanding the intricacies of CSPA, such as the CSPA age calculation, the “sought to acquire” requirement, and exceptions to the “sought to acquire” requirement, is crucial for securing CSPA protections.
Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.
This article is also available in Traditional Chinese and Simplified Chinese.
Disclaimer: The information on this website is provided for general informational purposes only and is subject to change without notice. It does not, and is not intended to, constitute legal advice. Accessing or using information on this website does not create an attorney-client relationship between you and the Firm, and it is not intended to do so.
