The Child Status Protection Act (CSPA) is a law that was implemented to provide immigration benefits to principal and derivative beneficiaries of certain petitions, even when they turn 21 years old, or “age out.” Generally, if a U.S. citizen or Lawful Permanent Resident petitions an individual under 21 years of age, and that beneficiary turns 21, the visa preference category changes, making the wait for a visa longer. Further, derivative beneficiaries can be adversely affected when they turn 21 as they can “age out” and lose any benefits they could have obtained through a petition filed for their parents. CSPA helps certain individuals maintain their “place in line,” allowing them to remain eligible for a visa, despite aging out.
CSPA provide a wide array of benefits, but this article will focus on one of the common ways that CSPA applies: where a beneficiary turns 21 while their petition has been filed and are waiting for a visa to become available. In this instance, the beneficiary who is over 21 years old may still be classified as a “child” by doing a simple calculation: age of the child when the visa becomes available, minus the time that the petition was pending. If that number is less than 21, then the beneficiary can still be classified as a child and can immediately pursue their benefits through the petition. However, they must “seek to acquire” these benefits within one year that such visa becomes available to them.
The concept of “seeking to acquire” is not as straightforward as it may seem. Of course, the obvious way to “seek to acquire” is to file an application for adjustment of status or an application for an Immigrant Visa. However, sometimes, beneficiaries do not even realize that their visa has become available for over a year and they lose their chance. Other times, there are “extraordinary circumstances” that precluded a beneficiary from “seeking to acquire” their benefits under the petition. After a 20+ year wait for a visa to become available, the idea of having to start over can be deflating.
USCIS has recently published a memorandum that explains a change in their policies to what they consider extraordinary circumstances. Some examples include serious illness, mental impairment, and ineffective assistance of counsel. Motions to reopen previously denied applications can be filed in lieu of the policy changes so speak to an attorney immediately if you feel this may affect your case.