Qualified Children Under CSPA Gain Protection from Aging Out

Mar 14, 2023

U.S. Citizenship and Immigration Services (USCIS) released a policy update on February 14, 2023, that would adjust the age calculation in certain situations for status applicants under the Child Status Protection Act (CSPA). The new guidance, effective immediately, will allow qualified individuals to use the more favorable visa bulletin date to retain child status, thereby increasing their chance of eligibility for receiving lawful permanent residence.

The CSPA was enacted in 2002 to protect the eligibility of children who turned 21 before they could obtain lawful permanent resident status due to USCIS processing backlogs. Before the CSPA, when a child turned 21, they were no longer considered a “child” under US immigration law, and their eligibility for certain immigration benefits would be lost.

According to the USCIS, “For a child to obtain lawful permanent resident status in the United States based on their parent’s approved petition for a family-sponsored or employment-based visa, the child generally must be under the age of 21. If the child turns 21 and “ages out” during the immigration process, the child generally is no longer eligible to immigrate with the parent based on the parent’s petition.”

How CSPA Calculates the Ages of Children

The CSPA provides a formula for calculating an applicant’s “adjusted age,” which takes into account the amount of time that the visa petition was pending. The Department of State’s Visa Bulletin, which comprises the Dates for Filing chart and the Final Action Date chart, is used to calculate when an immigrant visa number becomes available. 

USCIS found that the former policy created unintended consequences for certain individuals. For example, if a visa petition was pending for a long period, such as several years, the applicant’s adjusted age could end up being older than 21 years old, which could result in them losing their child status and becoming ineligible for lawful permanent residency or transferred to a different category that would cause with years of postponement.

Before the issuance of this new guidance, the USCIS only used the Final Action Date chart to determine visa availability under the CSPA, resulting in an increased number of children who aged out of lawful permanent resident status eligibility. This update resolves any contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.” 

  • When the USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, and the USCIS announces that prospective applicants may use the Dates for Filing chart when filing an adjustment of status applications, then the USCIS also uses the Dates for Filing chart when calculating the applicant’s CSPA age. 
  • When USCIS announces that a prospective applicant must use the Final Action Dates chart when filing the adjustment of status application, then USCIS uses the Final Action Dates chart when calculating the applicant’s CSPA age. 

How this Helps Immigrant Children and their Families

USCIS’s updated guidance on the CSPA age calculation is a helpful development for some noncitizen children on the verge of aging out. By allowing some individuals to retain their child status and remain eligible for certain immigration benefits, USCIS is reducing the possibility of family separation and giving qualified individuals a chance to live and work lawfully in the United States.

If you believe that you may be eligible for lawful permanent resident status under the new policy, consult with an experienced immigration attorney today at the Law Offices of Wiliani-Malek. Our attorney can review your case and help you determine your eligibility, as well as assist you in submitting the necessary documentation to USCIS. Call +1 (714) 432-1333 today!