Derivative Child Turning 21 Under CSPA

The Child Status Protection Act, which took effect on August 6, 2002, allows certain green card applicants to retain their classification as a child even if they are already 21 years old or over.

But the procedure to apply for immigration benefits is confusing mainly because implementing regulations have not been issued by the Department of Homeland Security or the Department of State.

In the absence of such regulations, applicants have relied on policy memos of the United States Citizenship and Immigration Services (USCIS), cable instructions of the Department of State and court decisions. But often, these memos and court cases did not yield favorable results.

For example, the National Visa Center which processes immigrant visa applications deletes the names of children of the applicants once they turn 21. And these children are not allowed to join the immigration interview of their parents (who are beneficiaries of their siblings’ petitions) even though they are eligible to apply as derivative beneficiaries.

What should a derivative beneficiary do to avail of the immigration benefits provided under the CSPA? How does the derivative child know if he/she is covered under the law?

Under Section 3 of the CSPA, the derivative child of a beneficiary of a family-based visa petition is entitled to have his/her age calculated according to a certain formula.

The CSPA formula states that the waiting time for the visa petition to be adjudicated is subtracted from the age of the child on the date that the visa priority date of the child’s parent becomes current.

According to an INS memo, “the date on which an immigrant visa number becomes available” is the first day of the month that a visa becomes available in a particular preference category as indicated in a monthly visa bulletin published by the Department of State.

But in order to freeze the child’s age below 21, the CSPA requires the child to have “sought to acquire” the status of an alien lawfully admitted for permanent residence within a year of the visa availability date.

The USCIS considers the child to have “sought to acquire the status” if he/she applied for adjustment of status, or an immigrant visa, or be the beneficiary of an I-824 within one year of the visa availability date. The filing of a labor certification or visa petition does not satisfy the requirement.

A child included in a petition filed for a parent by the parent’s brother or sister must submit a completed DS 230 for himself/herself. The DS 230 filed by the parent does not satisfy the requirement even if the child’s name is listed on the parent’s DS 230.

The eligibility for benefits under the CSPA may be determined at the time a visa application is adjudicated.

According to the U.S. Embassy in Manila, Philippines, a derivative beneficiary who believes he/she is qualified for immigrant visa may submit an application for review to a consular officer. The applicant should submit Form DS 230 (Parts 1 and 2), a valid passport, birth certificate and notice of approval of the family-based petition of his/her parent and a fee of $400.00.

The U.S. Embassy will review the case and will inform the applicant of its determination.