Preserving Child’s Immigrant Visa Eligibility After Turning 21

Before the enactment of the Child Status Protection Act (CSPA) on August 6, 2002, minor children stood to lose their eligibility for immigration benefits when processing delays by the Immigration Service or the Department of State prevented them from obtaining permanent residency before reaching 21.

With the CSPA, the age of the child is frozen on the date of immigrant visa availability minus the number of days the petition was pending. The child must apply for permanent residence within a year of visa availability, otherwise, s/he would not be covered by the law.

There are three factors to consider in determining a child’s age-out protection under the CSPA: first, the period during which the petition is pending; second, the date when the immigrant visa becomes available; and third, whether the child applied for an immigrant visa within one year of visa availability.

Petition Pending

The period during which the petition is pending is reckoned from the time the I-130 or I-140 petition is filed up to the date of approval.

If a child is 21 years and 2 months on the date the visa number becomes available and the I-130 petition under the Family 2A category or I-140 petition had been pending for 6 months, the child’s age is frozen at 20 years and 8 months (21 years and 2 months less 6 months). The child therefore does not age out under the CSPA.

Visa Availability

There must be an approved petition and a current priority date to determine visa availability.

The filing of the petition alone is not enough to freeze the child’s age; there must be an approval. The current priority date, on the other hand, is determined by referring to the monthly Visa Bulletin issued by the State Department. The Visa Bulletin indicates the priority date when a visa for a particular preference or category becomes available.

According to an Immigration Service Memo, the date on which an immigrant visa becomes available is the first day of the month of the Department of State Visa Bulletin, which indicates availability of a visa for that preference category.

The priority date is the order in which a visa becomes available. Generally, the priority date for family-based petitions is the date the I-130 is filed, while that for employment-based petition is either the date a labor certification or the I-140 preference petition (not requiring a labor certification) is filed.

Visa Application

The CSPA kicks in only if the child has filed an application for the visa within one year from the date of visa availability. The applicant need not actually obtain permanent residence as the law simply requires the filing of the application, within one year.

After the US Citizenship and Immigration Services (formerly, the INS) approves the petition, the National Visa Center (NVC) sends the applicant a packet that includes the Immigrant Visa Application form (DS 230 Part I) after payment of the immigrant visa fee. This form is filled up, sent back to the NVC, and entered into the system. The filing of the DS-230 Part I with the NVC within one year of visa availability constitutes the filing requirement.

For so-called following-to-join dependents, the filing requirement is fulfilled when the parent files the I-824 or, as some practitioners assert when the parent takes some other concrete step to obtain permanent residence status for his/her child within one year of visa availability.