New Hope Under CSPA for Children Who Aged-Out Before August 6, 2002

By Michael J. Gurfinkel, Esq.

On April 30, 2008, the USCIS issued a new policy guidance memo that could help many children who turned 21 before the August 6, 2002 enactment of the Child Status Protection Act (CSPA). In essence, USCIS is willing to give “retroactive effect” to CSPA in certain circumstances, including children of U.S. citizens, who turned 21 before August 6, 2002. As stated in the USCIS memo:

“The CSPA [fixed] the age of an alien beneficiary on the occurrence of a specific event (e.g. filing a petition). If the alien beneficiary [the child] is under the age of 21 on the date of that event [the filing of a petition], the alien would not age out and would continue to be eligible for permanent residence [green card] as an IR [Immediate Relative]. It does not matter whether the alien reaches the age of 21 before or after the enactment date of the CSPA [August 2, 2002], when the petition was filed, or how long the alien took after petition approval to apply for permanent residence provided the alien did not have a final decision prior to August 6, 2002 on the application for permanent residence [Form I-485] based on the immigrant visa petition upon which the alien claimed to be a child.” (emphasis added)

In this article, I will discuss the new CSPA benefits for children of U.S. citizens under the new memo. In future articles, I will discuss the new benefits to children of green card holders, or derivative beneficiary children under their parent’s petition

In the past, USCIS took the position that the CSPA was not retroactive, and ordinarily would not apply the CSPA to children of U.S. citizens who aged out before August 6, 2002. This new USCIS memo sets the child’s age at the time the parent files the immediate relative petition, provided the child was under 21 at that time.

Which Children of U.S. Citizens are Covered Under this New Memo?

There are 3 basic categories of children (of U.S. citizens) who would be covered under this new memo:

1. Children of U.S. citizens, where the parent filed the petition before the child’s 21^st birthday.

2. Petitions filed by lawful permanent resident (green card) parents for a minor child (category F-2A), and the parent naturalized before the child’s 21^st birthday; or

3. A petition filed by a U.S. citizen parent for a married child who was under 21, but the child terminates his or her marriage before the child’s 21^st birthday (i.e. through divorce, annulment, etc.).

In these situations, USCIS says that the child could still benefit from the CSPA whether or not the child reached the age of 21 before or after the August 6, 2002 date of enactment of the CSPA, “provided the alien did not have a final decision prior to August 6, 2002 on an application for permanent residence based on an immigrant visa petition upon which the alien claims to be a child.”

If you think that you or your child may benefit from this new memo, I urge you to immediately seek the advice of a reputable attorney who can evaluate your case and determine if you or your child could benefit under the recent interpretation of the CSPA. This is great news for citizens as well as their minor children who aged out before the CSPA.