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The Child Status Protection Act

The U.S. Supreme Court has issued a decision significantly affecting the interpretation of the Act; please see my blog post on this decision for more details.

The “Age Out” Problem

The Child Status Protection Act (CSPA) is primarily intended to address the “age out” problem resulting from the Immigration and Nationality Act’s definition of a “child” as an unmarried person under the age of 21. The practical effect of this definition is that a person loses his eligibility for many immigration benefits once he turns 21. For example, the son or daughter of a U.S. citizen must be unmarried and under 21 in order to be classified as an “immediate relative.” Once the son or daughter marries or turns 21, he or she is no longer exempt from the visa “preference categories” that often require a wait of years and even decades for an immigrant visa. Likewise, several of these visa-preference categories require that a person be a “child,” further constricting a person’s options once she turns 21.

Preference Categories and Derivative Children

The visa preference categories apply to immigrant visa petitions for persons who are not the immediate relatives of U.S. citizens (or who are not otherwise exempt from the preference categories). The family-based preference categories are as follows:

Category Definition # of Visas Available
F-1 Unmarried Sons and Daughters of U.S. Citizens 23,400 (+ any numbers not used for F-4 category)
F-2A Spouses and Children of Permanent Residents 77% of the overall F-2 numbers, of which 75% are exempt from the per-country limit
F-2B Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents 23% of the overall F-2 numbers
F-3 Married Sons and Daughters of U.S. Citizens 23,400, plus any numbers not used for the F-1 and F-2 categories
F-4 Brothers and Sisters of Adult U.S. Citizens 65,000, plus any numbers not used for the F-1, F-2, and F-3 categories

 

Using the Department of State Visa Bulletin

The visa bulletin is the best means for determining how long a particular person will have to wait for a preference-category visa number to become available. The dates listed in the bulletin are the current priority dates for the various visa categories. To be eligible for a visa, the person must be the beneficiary of an approved visa petition with an “individual priority date” on or before the corresponding date listed in the visa bulletin. The individual priority date is shown on the receipt notices and the approval notice for the visa petition. By matching this date against the appropriate, current priority date shown in the bulletin, a person can estimate the likely time she will have to wait before she becomes eligible for a visa.

For Example: Suppose that Matilda, a U.S. citizen, files an I-130 petition for her unmarried son George, an Australian national, and the petition receives an individual priority date of March 21, 2014. The petition falls into the F-1 category, and Australia is not an oversubscribed country. The April, 2014 visa bulletin indicates that for an F-1 petition from a non-oversubscribed county, the current priority date is February 22, 2007. This means that the beneficiary of a visa petition with an individual priority date on or before February 22, 2007 is currently eligible to apply for an immigrant visa. Assuming that the speed at which visa numbers become available remains the same, Matilda and George can expect that George will have to wait about seven years before becoming eligible to receive an immigrant visa.

Per-Country Cap

In addition to the total number of visas available, there is a separate, per-country cap on the number of visas that may be issued in each category to nationals of any particular country. This cap is 7% of the total family-based AND employment based visas available in any given year. In practice, this means that each country is limited to 25,620 preference-category visas in any given year (with a separate “dependent area” cap of 2% set for a colony or other territory of the country). When the number of applicants from a particular country exceeds the 25,620 cap, the country is said to be “oversubscribed,” a state of affairs that can quickly lead to long wait times for applicants from the country. At the present time, the following countries are oversubscribed: mainland China, India, Mexico, and the Philippines. As of the April, 2014 visa bulletin, certain wait times were very long. For example, an F-1 beneficiary (unmarried son or daughter of a U.S. citizen) could expect to wait about seven years for an immigrant visa if he were from a non-oversubscribed country. If, on the other hand, he were a Mexican national, he would likely have to wait more than twenty years, barring any major change in the law! By comparison, for an F-2 beneficiary (unmarried child or spouse of a lawful permanent resident), the wait would be only months for most applicants, or at most, two years or so for a Mexican national.

Overall F-2 Numbers

The rules for determining the available visa numbers for the F-2 category are complicated. First, there is an overall limit of 114,200 visas plus “the number (if any) by which the worldwide family preference level exceeds 226,000,” plus any unused F-1 numbers. The “worldwide family preference level” is the minimum number of family-based visas that the Department of State must issue, which is set by law at 226,000. This is a minimum number, and in years in which this number exceeds the minimum, the difference between the minimum and actual numbers is added to the number of available F-2 category numbers.

The F-2A Category

The F-2A category is capped at 77% of the overall F-2 numbers. Of this 77%, 75% are exempt from the per-country allotment of visas, meaning that for these numbers, it does not matter whether or not the applicant’s country is “oversubscribed.”

Derivatives

Derivatives of preference-category visa applicants are the spouse and children of the principal visa recipient, and they are eligible to be accorded the same status and priority date as the principal. Derivative status is also available to the spouses and children of refugees and asylees (and in other instances beyond the scope of this discussion).

The Effect of the Child Status Protection Act

The Child Status Protection Act of 2002 (CSPA), which President G.W. Bush signed into law on August 6, 2002, softens the impact of the INA’s definition of “child” in several ways:

  1. Immediate Relatives of U.S. Citizens

    1. In the case of the unmarried child of a U.S. citizen, the CSPA “freezes” the child’s age for purposes of eligibility for an immigrant visa, so long as the citizen petitioner files an immigrant visa petition on Form I-130 before the child turns 21. Even if the child turns 21 before the petition is approved or before she applies for or receives an immigrant visa, she will still be considered a “child” eligible for classification as an immediate relative of a U.S. citizen.
    2. If a lawful permanent resident files a preference category, immigrant-visa petition for her child and then later naturalizes (becomes a U.S. citizen), her petition will automatically convert to an immediate-relative petition, so long as her child is still unmarried and under 21. The CSPA further provides that the child’s age will be “frozen” as of the date of this conversion.
  2. Preference-Category Petitions

    1. If a U.S. citizen files a preference category, immigrant visa petition for his married son or daughter under the age of 21, and the son or daughter later divorces (or the marriage otherwise legally ends), then, so long as the son or daughter remains under 21, the petition will automatically convert to an immediate relative petition as of the date the marriage ends.
    2. If a U.S. citizen or lawful permanent resident petitioner files a preference category petition for her child and either (a) the petition is approved or (b) the priority date becomes current before the child turns 21, then the child’s age is “frozen” as of the date of the approval or of the priority date becoming current, so long as the child “seeks to acquire” an immigrant visa (or to adjust his status) within one year of (a) the approval or (b) the priority date becoming current, whichever happens first. These same rules apply to a lawful permanent resident’s derivative children (children accompanying or “following to join” the person as immigrants to the U.S.).
      1. USCIS interprets the requirement that the child seek to acquire an immigrant visa as meaning one of three actions:
        1. Filing Form I-824, Application for Action on an Approved Application or Petition on the child’s behalf (sometimes necessary when derivatives are “following to join” or for other reasons);
        2. Filing Form I-485, Application to Register Permanent Residence or Adjust Status; or,
        3. Filing Form DS-230 [presumably, because the old, paper DS-230 has been retired, the USCIS interpretation now applies to the new Form DS-260 (filed online)], Application for Immigrant Visa and Alien Registration with the Department of State.
      2. USCIS interprets the date on which the priority date becomes current as “the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin.”
    3. If a lawful permanent resident petitioner files an F-2 preference category petition for his unmarried son or daughter, and then later naturalizes, the CSPA provides that the petition will automatically convert to the F-1 preference category (unmarried son or daughter of a U.S. citizen).
      1. The CSPA also contains an “opt out” provision allowing the beneficiary of the petition to elect not to have this automatic conversion occur. Opting out can be advantageous in instances where the F-2 category has a shorter wait time than the F-1 category.
      2. Whether or not the beneficiary chooses to “opt out,” the CSPA provides that the priority date of the petition will remain the date on which the original, F-2 petition was filed.
  3. Derivatives

    1. The CSPA also protects the derivative children of refugees and asylees so long as the application for such status was filed prior to the child turning 21.

    Resources

    • The text of the CSPA.
    • Department of Justice Memorandum summarizing the CSPA’s provisions.

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