The CSPA new case and how to apply for the Green Card even if you aged out


Can you get the Green Card even if your over 21 years old?

Question: My auntie petitioned my mother when I was 3 years old. However, the visa process is so slow that it took 22 years for the visa number to become current. I was over 21 when my mother got her Green Card and the U.S. Embassy said that I aged out and could not come. Is there something that can be done without me having to wait another 10-15 years for a petition from my mother to become current?

Answer: Normally, in that case, once the child ages out, they cannot qualify to come as a derivative. There are, however, certain instances under the CSPA (Child Status Protection Act) whereby the derivative can show he or she is under the age of 21 (under immigration law.) However, in this case, that would not be applicable. Given that, the question then becomes whether you can still fall under any particular provision of the CSPA.

In this case, there was the BIA case Matter of WANG which specifically denied the priority date retention provision of the CSPA. However, the 9th Circuit Courts of Appeal has just come out with a decision which overruled the BIA and has stated essentially that this provision of the CSPA does stand and needs to be followed.

Question: What is this case and what does priority date retention mean?

Answer: First, it is necessary to understand basic immigration family petitions. You have a petitioner which is either the U.S. Citizen, or a Lawful Permanent Resident petitioning the beneficiary (which is the person who wants to come into the U.S.) Once the petition is filed (assuming it is not an Immidiate Relative) will be put into a visa line and only when the visa becomes current (sometimes many years later), can they immigrate to the U.S.

In many of these cases, the child is eligible to immigrate as a derivative at the time that the petition is filed, but once the visa number becomes current, they “age-out”. This can also occur as a direct occurrence for example from a Lawful Permanent Resident petitioning a child under 21.

Question: What exactly is the provision of the CSPA that was ruled on in the 9th Circuit case?

Answer: Well, first you have to try to do the age reduction calculation to see if the beneficiary is actually under 21 for immigration purposes. This means that even if their real age might be over 21 years their immigration age would be under 21 and they can immigrate. However, for purposes of this new case, it is only for those derivative beneficiaries and beneficiaries that have not only aged out, but cannot have their age determined to be under 21.

The CSPA in those cases under the particular provision of the CSPA, will have a petition that is automatically converted to the appropriate category. In other words, let’s say that in your example that an aunt petitioned your mother and you aged out and you cannot reduce your ‘immigration age’ to under 21. In that case, their application is automatically converted for a petition from your mother to you. This would be a Lawful Permanent Resident petitioning a son/daughter over the age of 21. This would be preference F2B.

Then the next part is the key. The CSPA allows you to then recapture or use the priority date of the petition from your auntie’s petition to your mother. As you stated, you were 3 years old when the petition was filed and you were about 24 years old when the visa number became current. This means, that under the CSPA (and now the 9th Circuit Class Action suit that agreed with the provision of the CSPA) that the priority date of the now automatically created petition is the SAME as the one your auntie filed for your mother. Therefore, the priority date will be basically over 20 years old the very moment the petition is automatically created. Since that number is now current, you can then come into the United States under this petition now. You have the petition and the visa number is current. Therefore, you can process right now to get the Green Card.

Question: So, what did the Ninth Circuit case do?

Answer: In fact, USCIS and other government agencies were denying this provision of the CSPA. They basically stated it was not supposed to do what was clearly in the law. Thus, now with the affirmation of the Ninth Circuit case, we can proceed forward with all of these CSPA cases.

9 Responses

  1. Hi Brian,

    How would this work in the case of a USC? Currently, the filing of an I-130 requires both spouse and children of USC to be filed separately. In our case, USCIS received both applications one month before my daughter’s 21st birthday, and mine was accepted but hers was rejected due to a signature being in the wrong place. (Part F). USCIS rejection processing time and international mail had it returned to us 6 days before my daughter’s 21st birthday. We turned it around within an hour of receiving it, via express international post and it arrived on her birthday. As a result, her priority date is ON her 21st birthday and she is now in the F1 category (As an adult child) rather than IR and is subject to a 7 year wait. My application with a filing date before her 21st birthday has her listed as my child. It seems a high price
    Ros: to pay for putting a signature in the wrong box

    • It was filed incorrectly, and therefore, never actually filed. You would have a very difficult time trying to show she was under 21 when filed. While this does not help, this is a very good reason to make sure an experienced attorney does the work as your daughter will now have to wait many more years.

  2. Hi Brian,
    I’m trying to figure out if I am understanding CSPA correctly.
    The beneficiary in this case(PR Mom apply for minor son) currently is 19 and will turn 20 in April, 2013. By my calculations, based on current processing times (and I do know they vary), are: Feb ??, 2013, I-130 is submitted. Beneficiary’s age at time of application is 19y, 10m. Estimate 1 year 3 months later, around June, 2014, I-130 application approved. Estimates time for visa to be available, 2 years 4 months, June, 2015. Age at time of visa is available, 22y, 2 months, subtract the time that it took to process the I-130, 1 year 3m, age 20y 11m, so he would still be considered a minor. If they do not consider him a minor, he moves to the F2B. Am I understanding this correctly? Does USCIS automatically take in CSPA scheduling visa interview? If not and CSPA does apply, what steps does one take to get CSPA applied. I know he will age out during the waiting time and If he has no chance of CSPA, and will be put in the F2B category (20 years), we are not going to submit his application.

    • Hello:

      If he qualifies, my firm can prepare the CSPA adjustment.

      Adjustment of Status
      An Adjustment of Status Application must be filed. This application will hopefully have the end result of obtaining lawful permanent residency. Once it is filed, the work-permit will be issued in a few months. Afterwards, in about 6 months to 1 year, the final interview will be conducted. Should you want to retain my firm to send an attorney with you to the interview, we will be happy to do so.

      Attorney Fees (Filing Fees and Costs not included)
      The total Attorney Fees will be $2,500.00.

  3. hello
    my category of immigrant is f4
    my birth day is 7/22/1989
    and my brother birth day is 12/27/1983
    my uncle request for my mother in november of 2000 and case number of this file specified in june 2005 please help and tell me that who from me or my brother in this file include greencard now according to the latest changes in cspa law .

    Thanks for the guide

    • There has been a case decided in the Ninth Circuit Court of Appeals which verifies and confirms that the necessary provision of the CSPA (or Child Status Protection Act) applies to cases just like this one. In essence, it states the following: 1) There was a petition filed many years ago by a petitioner to a beneficiary; 2) The beneficiary had a child under 21 at the time; 3) When the visa became current, the beneficiary was able to adjust, but the child or children of the beneficiary were over 21 years old and now they are having to wait many more years to immigrate.

      This provision of the CSPA allows the following to happen: 1) A fictitious type petition is automatically made from the the beneficiary to the child thereby falling under family preference F2B; 2) The priority date from the original petition from the petitioner to the beneficiary is used and retained on this fictitious petition so that numerous years of waiting basically disappear.

      Therefore, under this particular provision of the CSPA, my firm can now prepare the attorney cover letter, declarations, exhibits and everything necessary to move forward in order to bring the child or children (now all over 21 years old) many years sooner.

  4. hello..
    my mother category of immigrant is f4
    my mother priority date is dec. 19, 1987
    i was only 7 years old at that time
    my birthday is 12/28/1980
    i was 30 years old when my mom visa become available..
    can i still include myself to avail the priority date of my mother as stated in the 9th circuit ?

  5. Hi atty, i have te same case like kaye,but i am married now.can my us citizen parent file a petition for me,and capture my old pd? Thanks for your help, nina

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