In order to alleviate the consequences of children “aging out” and avoid separating families, the Child Status Protection Act (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 allows the time that the visa petition was pending to be subtracted from the child’s age when the priority date becomes current.
A beneficiary’s priority date becomes current on their 25th birthday after the visa petition was pending for 5 years.
According to the CSPA formula the beneficiary’s CSPA age is 25 – 5 = 20 years old.
Thus, the child is permitted to immigrate together with his/her parents.
However, unfortunately, the parents have no control over how long the USCIS will take to approve the petition. The longer that the USCIS takes to approve the petition, 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.
Absurdly, the child will not be permitted to migrate with his parents if his petition was approved after pending for 1 year, but would be able to if his petition was pending for 5 years.
Congress needs to speak clearly to resolve this absurdity.
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CSPA Formula Resources
- CSPA Formula Calculator
- CSPA (USCIS)
- Child Status Protection Act (H.R.1209)- Signed into Law (8-6-02)
- Child Status Protection Act FAQ
- CSPA Videos
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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