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).
In many cases, a child’s age is calculated to be under 21, but he or she is nevertheless denied a green card because the child neglected to “seek to acquire” the visa within one year.
But what does “seek to acquire” mean? According to USCIS and the State Department, “seeking to acquire” is typically accomplished by filing a Form I-824 (Application for Action on an Approved Application or Petition), DS-230 (Application for an Immigrant Visa and Alien Registration), or Form I-485 (Adjustment of Status) on behalf of the child, (and not just on behalf of the parent). But many parents get confused about this requirement and miss that one-year deadline.
Part of the confusion is knowing WHEN that one – year time limit begins. According to the USCIS and the State Department, the one-year time limit begins when the priority date is current (or visa becomes available). If the child is a “derivative” under the parent’s petition, then the one-year time limit starts when the priority date is current with respect to the parent.
Most of the time people mess up on this requirement because they think that the parent must first obtain his or her green card (or adjust status) and only then take steps to pursue a visa for their child in the Philippines. That is not the case! If the priority date on the parent’s petition becomes current, and more than one year passes before the parent adjusts status, then the family has missed the one year “sought to acquire” deadline.
I’ve known of many cases where the parent is in the US, and the child is in the Philippines and the parent waited for more than a year from the time the priority date became current before adjusting status. Only then an I–824 is filed for their child. That would be too late since they missed the one – year sought to acquire requirement.
However, it should be noted that the State Department has stated that there could be “other ways” to satisfy this one – year sought to acquire requirement, depending on the facts and circumstances of a particular case.
If your child was found to have “aged out” and denied CSPA benefits because the child supposedly did not “seek to acquire” a visa within one year of visa availability, you may want to seek the advice of a reputable attorney, who can evaluate your situation, and determine if your child may be eligible through “other ways.”
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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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