Child Status Protection Act - Q&A
Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:
Child Status Protection Act: Explaining the new law
I'm calling Mr. Shusterman and turning on moderation.
Please remember that these questions and answers are of a general nature. Mr. Shusterman's replies cannot be construed as legal advice. Thanks and welcome.
Question 1: My DOB is 9th August 1981. Green Card petition had been filed for my Dad by his brother under preference category F4 on 26th July 1990. Our Priority date is current now. But I turned 21 on 9th Aug 2002. We have just sent out the choice of agent form now and we expecting the dsl forms. So will I be able to accompany my parents under the new Act ? Do we have to submit any papers to our consulate to inform them about my aging out problem?
Carl Shusterman: This question illustrates some of the complexities involved in determining eligibility under the Child Status Protection Act, which was signed by President Bush on August 6th, 2002. Under prior law, you would have aged out, that is when you turned 21 on August 9, 2002, you would have lost the ability to immigrate together with your parents.
Since the enactment of the law, your eligibility to immigrate with your parents must be determined according to the following formula:
First of all, it is necessary to determine your age on the date that a visa number became available to you, the day that your priority date became current that is. Second, the amount of time that your uncle's visa petition remained pending, must be subtracted from your age when your visa number became current. Finally, assuming this subtraction results in 'immigration age' of under 21, you must apply for an immigrant visa if you are abroad, or for adjustment of status if you are in the United States within one year.
Question 3: My sister received her permanent resident visa in Jan 2001 ( I had applied for her and her spouse and children in 1988). Her children could not accompany her because they aged out. One turned 21 in 1999 April, second in 1996 Sept. Both are not married yet. She filed petitions for them as relative form I130 in April 2001, within one year from her obtaining her perm. resident visa. We need to know if these children now qualify to receive perm. resi. visa under the CSPA. Please let us know. What procedure they will have to follow? Thanks for your advice.
Carl: Again, the Act is not generally retroactive. If her children had aged out in January of 2000, when your sister became a permanent resident, it is not likely that they will be able to obtain benefits under the Act. However, if your visa petition was pending many years with the INS before it was approved, there is always a chance that your nieces and nephews might have immigration ages of under 21 under the formula.
That is not the end of the analysis. The final section of the law provides that the law is effective for derivative beneficiaries only if:
1) A visa petition was approved before the passage of the law, but only if a final determination has not been made on the beneficiary's application for an immigrant visa or for adjustment of status.
2) A visa petition was pending on or after the date the law was enacted;
3) An application for a green card based on the visa petition was pending on or after the date that the law was enacted
