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Child Status To Apply For A Green Card

Child Status Protection Act Formula Calculation May Allow A Person To Apply For A Green Card

While my mother was on green card immigrant visa status, she filed a petition for me as her unmarried child over 21, along with my sons. This petition was approved naming me and my sons. The visa number became current and available while my mother’s status changed to citizen. I thought it would best if approached an immigration lawyer to assist me to work on our documents. Unfortunately for me, I did not find the best immigration lawyer because she did not provide the assistance she was hired for and I subsequently approached another lawyer. Upon examining our documents, the new lawyer informed me that he could only help me and not my sons, because they had aged out. I need clarification on this because the previous lawyer said that my son was covered by the immigration law reforms signed by President Bush under the Child Status Protection Act, yet the new lawyer seems to think otherwise. I have never been apart from my sons unless it was exigent for my job and would prefer to live around and/or with them as I get older. I would greatly appreciate your advice.
— Anonymous

On August 6, 2002, President George W. Bush signed the Child Status Protection Act (“CSPA”) into law. The CSPA was enacted to change the process for determining whether a child has “aged out” (i.e. turned 21 years of age before being issued an immigrant visa or adjusting status) for the purpose of the

issuance of visas and the adjustment of status of applicants in most immigrant categories. There is a specific formula for determining whether a child’s age is protected by the CSPA and there are required dates that must be plugged into the formula. The following is an example of how to calculate the age of a person using the CSPA formula:

 

Child’s Date of birth: November 1, 1984
Receipt Date of Petition Filed: November 15, 1995
Date the Form I-130 was approved: January 15, 1997
Length of time the Form I-130 was pending: (i.e. November 15, 1995 to January 15, 1997), which is 1 year, 2 months
Date the petition became current (by looking at the Department of State Visa Bulletin): December 1, 2006
Date the visa became available (later of #3 or #5): December 1, 2006
Age of daughter on date visa became available: (#6 minus #1)= 22 years, 1 month
Age of daughter for CSPA purposes (i.e. age at time visa became available minus length of time petition was pending (#7 minus #4): 22 years, 1 month minus 1 year 2 months = 20 years, 11 months.

As you can see, this person is protected by the CSPA, has not “aged out,” and is thus still considered a child for immigration purposes. If, after reviewing the above formula and plugging in the dates applicable to your situation, you are confused or have further questions, it would be best for you to consult with an experienced immigration lawyer to determine whether your children are CSPA protected and if so, how to obtain a green card to the USA.

Michael Shane and Evan Shane, Immigration Attorneys

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