Can I still Immigrate to the United States as a child even though I am 26 years old?

Question: My Father petitioned me years ago and I am just getting around to applying. However, I am over 21 years old. I heard about the CSPA. What is it and how can it help me?

Answer: The CSPA stands for Child Status Protection Act and it is meant for persons in your situation. It came into being on August 2002. There are different provisions, but there are some parts that should apply to you right away.

First, under the CSPA, if the petitioner is a U.S. Citizen, and the age of the child is under 21 years old, then the age is locked in under Immigration Law under the CSPA. Thus, if you were petitioned by your father when you were 20 years old and now your are 26 years old, that is not a problem. Under the CSPA, you are 20 years old – even if you are really 26 years old. Your age will never change under the CSPA in this instance. Thus, you can apply for adjustment of status at any time as a child.

Question: What if my father was only a Lawful Permanent Resident as the petitioner?

Answer: In that case, there is some more analysis that must be done. However, the first thing to look at is whether he qualifies to become a U.S. Citizen before you would turn 21 years old. If he qualifies, then he should apply right away. If you were to approach 21 years old, then he could get the Naturalization expedited. As long as he would become a U.S. Citizen before you were to turn 21 years old, then your age will be locked in under the CSPA and you will never have to worry about aging out.

Question: What if I’m not so lucky and my father does not qualify for Naturalization?

Answer: In that case, then we must look under another provision of the CSPA. In this case, or in any other case where the petitioner is not a U.S. Citizen, there is a several part analysis that must be made. 1. You must find out when the visa number became current. This is done by looking at the visa chart on the first of the month and year upon which it became current. 2. You must then look at how long the I-130, I-140 or I-526 or Diversity Lottery Application was pending. Generally, look at when it was filed and then when it was approved. 3. Take your age on the date the visa number became current and subtract the time the petitions listed above were pending. This is your age for CSPA purposes. If it is under 21, then you are a child for CSPA purposes. 4. Then you have 1 year from that time in which to take action on the petition. If you do not, then you will not be able to fall under the CSPA.

Question: I heard there is some part of the CSPA that applies specifically to Filipinos. What is that?

Answer: While it does not specifically list Filipinos in the law, it clearly was meant to help Filipinos when the following situation arises. Normally when the petitioner is a Lawful Permanent Resident and the beneficiary is a son or daughter over 21 years old and the petitioner then becomes a U.S. Citizen, the visa waiting list time is much less (years less.) However, it is actually backwards in the Philippines. Thus, under the CSPA when the preference automatically changes from preference F2b to preference F1, the beneficiary can elect to actually go back to preference F2b so that they do not have to wait multiple years more because the petitioner became a U.S. Citizen.

Question: What about if the beneficiary is a child of the mother or father actually being petitioned by the grandparent or uncle?

Answer: In this case, there is considerable dispute in Immigration as to how they handle these cases. However, the law states essentially that the aged out child will be able to basically use the same old priority date and consular process or adjust without having to wait the many years it normally takes for such a petition. It is a great provision, but many times you will have to fight to get USCIS to approve it.

Thus, while there are several provisions under the CSPA, if they are not used or not applied correctly, then there will be many years of needlessly waiting.