Before August of 2002, any individual who attained 21 years of age or more prior to becoming a permanent resident would no longer be classified as a “child” under the Immigration Nationality Act (INA). The INA defines a child as an unmarried individual under the age of 21 and affords children certain protections and privileges as beneficiaries of an American citizen, permanent resident or for other immigration related matters. In 2002, after realizing that many individuals were turning 21 while waiting for petitions to be processed and approved, and thus losing their status as children despite having filed while considered children under the INA, the Child Status Protection Act (CSPA) was legislated to modify the definition of “child” under the INA in certain situations. This amendment was thought to provide a more equitable approach for children who simply “aged out” of their classification due to lengthy delays and backlogs in petition processing. The CSPA applies to all applicable immigrant children (family based, employment based and certain humanitarian based categories as well).
Under the CSPA, a beneficiary may still be considered a child, despite being older than 21 years of age, for purposes of permanent residency petitions. Thus, one who was under the age of 21 at the time of the petition will still retain classification as a child as concerns the petition, despite having reached age 21 or more provided the following requirements are met;
- the beneficiary must have a pending or approved visa petition on or after August 6, 2002
- no final decision on an application of adjustment of status or immigration visa was made prior to August 6, 2002
- the child must “..seek to acquire” permanent residency within a year of obtaining a visa by either
- filing or having another file an I-824 (Application for Action on an Approved Application or Petition
- filing or having another file an I-485 (Application to Register Permanent Residence or Adjust Status) or
- submitting or having another submit a DS-230 (Application for Immigrant Visa and Alien Registration)
CSPA has another, fairly more complex provision referred to as “opting out” which allows the adult, unmarried child of a Green Card holder (permanent resident) to retain that classification and preference even if the permanent resident parent becomes naturalized during the interim. In other words, the unmarried adult child can keep the 2nd status preference of the child of a Green Card holder rather than choosing the 1st status preference of the child of an US citizen even if his or her parent became a citizen while the child’s petition was pending. Although this may seem contrary to one’s interests, the opt out provision may be used when the wait for a 2nd preference visa is exceeded by the wait for a 1st preference one.