Navigating CSPA: Why Early Action is Key to Preventing Children from Aging Out
For many individuals intending to immigrate to the United States, a primary goal is to bring their immediate family along. The timing of immigration processes plays a critical part in achieving this objective.
Under U.S. immigration law, “derivative” permanent residence applicants are allowed to file alongside the principal applicant. Derivative dependents are considered to be spouses and unmarried children under the age of 21. A problem often faced as a result of this definition is the reality of the passage of time and children turning 21 before being able to immigrate. This “aging out” often occurs through no fault of their own due to government agency processing times or visa availability.
As a result, Congress enacted the Child Status Protection Act (CSPA), which took effect on August 6, 2002. The CSPA aims to protect certain children from aging out by freezing the child’s age at a certain stage in the immigration process. This allows them to immigrate through the principal applicant, even if they are likely to turn 21 before their lawful permanent residence is approved. The CSPA uses calculations that take into consideration certain realities of the immigration process including U.S. Citizenship and Immigration Services (USCIS) processing times.
CSPA Age Freeze for Immediate Relatives, VAWA Self-Petitioners, and Derivative Children of VAWA Self-Petitioners
For immediate relatives, VAWA self-petitioning abused spouses or children of U.S. Citizens, and the derivative children of VAWA self-petitioning abused spouses or children of U.S. citizens, the age of a child is frozen on the date that the Form I-130 or Form I-360 is filed.
As long as the child is under 21 years of age when the I-130 or I-360 is filed, they can still obtain lawful permanent residence, even if they turn 21 before their application is formally approved. While CSPA freezes the age of the child, it does not remove the requirement that the child remain unmarried to qualify.
CSPA Age Freeze for Asylees and Refugees
Derivative asylees have their age frozen on the date their principal asylee parent or Form I-730 petitioner files their I-589. This classification also maintains the requirement that the child remain unmarried to qualify.
Derivative refugees have their age frozen on the date that their refugee parent or Form I-730 petitioner files their I-590. While the law requires that the child remain unmarried to qualify for admission to the U.S. as a derivative refugee, the child does not need to remain unmarried to qualify for lawful permanent residence.
CSPA Calculation for Family and Employment Preference Petitions as well as Diversity Visa Program Immigrants
Where the CSPA becomes a bit more complicated and sometimes less helpful is in the context of family and employment preference petitions, as well as diversity visa program immigrants. For individuals in these categories, the CSPA utilizes a calculation rather than a simple freeze to determine the child’s CSPA age. This is where timing can become a problem for many applicants hoping to have their children benefit from their lawful permanent resident status.
The CSPA age is calculated using the following formula:
CSPA Age = Age at Time of Visa Availability – Petition Pending Time
While this calculation appears advantageous initially—potentially reducing a child's age by accounting for the time a petition is pending—it requires careful evaluation of the details and calculations involved. The “Petition Pending Time” factor, for example, contains its own calculation:
Petition Pending Time = Approval Date – Filing Date
Likewise, the “Age at Time of Visa Availability” refers specifically to the later of two dates: 1) the date the petition was approved, or 2) the first day of the month when USCIS considers a visa available for filing an adjustment of status application based on the immigrant preference category, country of chargeability, and priority date.
The Problem
While the CSPA is helpful, it only allows for age “crediting” for the period between the filing of the immigrant petition and its approval. It’s important to note what this credited time does not include. For example, the credited time does not include any time before the filing date of the immigrant petition, such as the processing times of Form 9141(Application for Prevailing Wage Determination) or Form 9089 (Application for Permanent Employment Certification).
As of the date of this article, the Department of Labor estimates 7 months to process prevailing wage determinations for PERM processes. Currently, the PERM applications themselves are taking 439 days for analyst review, which is about 1 year and 2.5 months. For audit review, the Department of Labor indicates processing times of 496 days. These processing times can also fluctuate, sometimes decreasing and often increasing.
Also not contemplated in the calculation above is the time between approval of the immigrant petition and the time of visa availability mentioned above. In recent years, significant backlogs across most employment-based categories have been registered in the Visa Bulletin. This often means that individuals with approved immigrant petitions cannot adjust their status because their priority dates are not yet current.
This represents a significant problem for those intending immigrants with children. Once the petition has been approved, the time calculated for “Petition Pending Time” ends, but the “Age at Time of Visa Availability” continues to increase.
Example of The Problem
If Aaron’s employer, ABC Corp, wishes to file an immigrant petition to hire him for a permanent position through the PERM process, they must consider the timeline carefully since Aaron’s son, Bob, is 18 years old. While it may seem like no problem with 3 years to spare until he turns 21, the process can be more complex than it initially appears.
First, ABC Corp must file a Form 9141, which currently takes approximately 7 months. Following this, ABC Corp must then conduct recruitment and, upon completion of the recruitment period, file a Form 9089 which currently takes approximately a year and 2.5 months. By this point, about 2 years will have passed since the initiation of the process, assuming there were no delays such as audits or other potential complications that could arise if ABC Corp does not have experienced immigration counsel. This means Bob is now 20 years old.
Once ABC Corp files the I-140, the time between the filing and approval of that petition benefits from the CSPA calculation and represents time that will be subtracted from Bob’s true age at the time of visa availability. However, upon approval of the I-140, Aaron and ABC Corp may find that the Visa Bulletin does not yet reflect a visa available for filing an adjustment of status based on the immigrant preference category, country of chargeability, and priority date. At this point, the clock starts ticking again until a visa becomes available for filing. This uncertainty creates anxiety for Aaron and Bob, as there is a risk that Bob’s CSPA age will exceed 21 before a visa is available.
The Solution
It may seem obvious, but the best way to address this issue is to start the immigration processes as soon as possible. This helps ensures that immigrant petitions receive the earliest priority date at the earliest possible age for derivative children.
Both beneficiaries and intending petitioners should keep this in mind, as it can significantly impact whether the derivative children of intending immigrants age out or immigrate with their parents. Visa bulletin retrogression and backlogs are fairly unpredictable, but the trends indicate consistent increases in the number of applications being filed, which means delays are expected to continue for the foreseeable future. Additionally, the trend with the Department of Labor has shown longer processing times for both Forms 9141 and 9089.
When children are involved, it is crucial to properly weigh the costs and benefits of utilizing Premium Processing in immigrant petitions. While it may lead to a faster decision, it is important to consider that in some cases, a faster decision is advantageous, but in others, taking more time could be more beneficial. A faster decision could limit the time subtracted from the age at visa availability and potentially hinder the protections for a beneficiary’s children under the CSPA.
If you are considering immigrating to the United States or if you are an employer exploring the possibility of filing an immigrant petition on behalf of an employee with derivative children, we recommend consulting an experienced immigration attorney at Buchanan Ingersoll & Rooney who can help advise you on critical timelines.