Children Must Have “Sought to Acquire” a Visa Within One Year to be Eligible under the CSPA

By Michael J. Gurfinkel, Esq.

The Child Status Protection Act (CSPA) provides certain benefits to children who “aged-out” (turned 21). For children of U.S. citizens, their age could be “locked in” as a minor, provided their U.S. citizen parent filed an immediate relative petition before the child’s 21^st birthday.

However, in the case of children of immigrants (green card holders) or derivative beneficiary children (under their parent’s petition, such as an employment based petition filed on behalf of the parent, or a petition by an uncle, aunt, or grandparent on behalf of the parent), there is an added requirement that many people overlook, thereby depriving the child of the age-out protections of the CSPA. For children of immigrants, not only must the child’s age be considered to be under 21 (based on a mathematical formula), but the child must also have “sought to acquire” his or her visa within 1 year of availability. Many cases have been denied because the child did not take steps to pursue their visa within 1 year of visa availability, even though the child was considered to be under 21.

According to the USCIS, a child’s visa is “available” when the priority date is “current”. The petition’s current date is announced each month via the Visa Bulletins. Within 1 year of the priority date being current, the child must have a Form I-485 (Application to Register Permanent Residence or Adjust Status), if in the U.S., or a Form I-824 (Action on Approved Petition) if in the Philippines, filed on his or her behalf within 1 year of the priority date becoming current. Note: if a parent files an adjustment of status on the parent’s own behalf, it does not satisfy that requirement:

1. If the child is in the U.S., the child’s own I-485 must be filed within 1 year the priority date becoming current.

2. If the child is in the Philippines, and the parent is adjusting status in the U.S., the parent, on the child’s behalf, must file the I-824 within 1 year of the priority date becoming current (NOTE: The I-824 must be filed within 1 year of the priority date becoming current, NOT within 1 year of the parent adjusting status or receiving the green card, which might be more than 1 year from the time the priority date became current). So it would be advisable for the parent to file his I-485 and the child’s I-824 at the same time, to be sure.

As I said, many families who ordinarily could have had their child be eligible for CSPA, nevertheless had the case denied because they had not “sought to acquire” the child’s green card within 1 year visa availability.

If you are in that situation, or have a child who could still possibly benefit from the CSPA, I would strongly recommend that you seek the advice of a reputable attorney, who can evaluate your situation and determine if your child could still benefit under CSPA, even if he or she is now over 21.