I know of many cases where a child was a derivative beneficiary of the parent’s family or employment-based petition. The parent was able to adjust status, and lock in the child’s age under the CSPA mathematical formula. While the child was in the midst of being processed for an immigrant visa, the parent became eligible for citizenship (because perhaps the parent received his or her green card more than five years ago), and the parent goes ahead and naturalizes after the child’s 21st birthday.
The Child Status Protection Act (CSPA) provides age-out protection for certain children who turned 21 while waiting for their green card or immigrant visa. For children of non-citizens (such as derivative beneficiaries of their parent’s employment or family based petitions, or minor children of immigrants), there is a two-step process:
1. Calculate the child’s age based on a mathematical formula; and
2. The child must “seek to acquire” his or her visa within one year of when that visa becomes available (or priority date was current).
If the child’s age is calculated to be under 21, and the child has properly “sought to acquire” a visa within one year of visa availability, then the child’s age is “locked in,” and the child will remain eligible for benefits under the CSPA even after he or she turns 21 years of age.
However, if their parent naturalizes after the child’s 21st birthday, then the parent’s naturalization destroys that child’s CSPA eligibility. In other words, if a child is eligible under the CSPA, the parent should not naturalize after the child’s 21st birthday.
I know of many cases where a child was a derivative beneficiary of the parent’s family or employment-based petition. The parent was able to adjust status, and lock in the child’s age under the CSPA mathematical formula. While the child was in the midst of being processed for an immigrant visa, the parent became eligible for citizenship (because perhaps the parent received his or her green card more than five years ago), and the parent goes ahead and naturalizes after the child’s 21st birthday. In that situation, the child would no longer be eligible for CSPA benefits because of the parent’s naturalization. This is because, in most of these cases, the child’s CSPA eligibility is based on the child being a “derivative” of the parent’s petition, meaning they derive eligibility under the parent’s original petition. Once the parent naturalizes, there’s no more derivative status.
The only time where it would be “safe” or beneficial for a parent to naturalize is if he or she can do so before the child’s actual, physical 21st birthday. But once that child turns 21, the parent’s naturalization could mess everything up.
If you have a child who you believe is eligible for benefits under the CSPA and you, as a parent, are thinking about naturalizing, you should seek the advice of a reputable attorney to evaluate your situation before you take the oath of citizenship. If you go ahead and naturalize first and then asked an attorney if it was “okay,” it may already be too late, and the damage cannot be undone.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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