March 16, 2009: CSPA Age-Out Issues

CSPA Age-Out Issues

I am the derivative beneficiary of a petition filed on behalf of my father by one of his USC brothers. I have already turned 21 this past year hopefully in the next month or so our case number will be up, well I am wondering if I have actually been maxed out? If so what are my options? I would like to get this matter sorted out. Thank you.
— Anonymous

The ultimate question is whether you are still a `child’ for immigration purposes pursuant to the Child Status Protection Act (CSPA) that was signed into law on August 6, 2002 by former President George W. Bush. 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 a visa or adjusting status) for the purpose of the issuance of visas and the adjustment of status of applicants in most immigrant categories. The CSPA helps individuals who were under the age of 21 when a visa petition was filed on their behalf or could have benefited from a petition as a derivative beneficiary, but are over the age of 21 when a visa number becomes available. Thus, it is important to look at how long the petition was pending versus the age when a visa number became available. For example, where the visa petition was pending for several years, a 22 year old individual can subtract the length of time the visa petition was pending from their current age. Thus, assuming CSPA eligible, if the petition was filed when the individual was a child (19 years old), yet the petition remained pending for 3 years, and the child is now a 22 year old adult and a visa number is available, that individual may still be considered a child for immigration purposes because the `child’s status’ was protected by the CSPA. There is a very specific formula that must be used to calculate an individual’s age under the CSPA. On another note, if you can prove that you are a derivative beneficiary of an I-130 visa petition filed on or before April 30, 2001, you are grandfathered under 245(i) of the Immigration and Nationality Act (INA). This means that by paying a $1,000 penalty, you can adjust your status in the United States if you are the beneficiary of a petition filed on your behalf. Examples of a possible petitioner are non-immediate relatives or an employer.

Before you file anything, it would be wise for you to consult with experienced immigration attorney to review your records and analyze your options.

Michael Shane and Evan Shane, Immigration Lawyers