In order to alleviate the consequences of children “aging out” and avoid separating families, the CSPA provides an age preservation formula, minimizing the number of age-outs. The formula provides beneficiaries on a pending visa petition to preserve their age as under 21, despite being over 21.
The CSPA formula works such that the child should subtract the time that the I-130 or I-140 was pending from his/her age when their priority date became current.
A beneficiary’s priority date becomes current on their 25th birthday after the visa petition was pending for 5 years.
According to this formula the beneficiary’s CSPA age is 25 – 5 = 20 years old.
Thus, under the CSPA, the beneficiary is permitted to immigrate with his/her parents.
(LINK TO THAT PAGE) However, unfortunately no child has control over how long the USCIS will take to approve their petition. In some cases, as luck would have it the longer it takes, the better.
Illustrating this using the example above, assume that the petition was only pending for 1 year instead of 5.
According to the formula, the CSPA age of the beneficiary will now be 25 – 1 = 24 years old.
Regrettably, the child will now not be permitted to migrate with his parents after his petition pending for 1 year, as opposed to if his petition was pending for 5 years.
However, fortunately Congress recognized this problem and more recent amendments to the law provides protection for children under these circumstances in section 203(h)(3) of CSPA. This section states that any such child who still “age-out” despite the formula will be converted to the F-2B visa category (LINK TO THIS) and is able to retain their parent’s priority date.
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- Sgt. Danny Lightfoot, Los Angeles, California
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