Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I know that the Child Protection Act has been passed on August 6, 2002. However, I am still confused if I fall under this provision. Can you help to clarify?

Answer: Yes. The Child Status Protection Act (CSPA) makes certain allowances for people who have become older than 21 years old, but can still have their applications processed as though they are under 21 years old.

IMMEDIATE RELATIVES: The first category is Immediate Relatives. These people will be able to be considered to be able to immediately apply to adjust their status to that of a Lawful Permanent Resident, even though they may be over 21 years old. If you are in the U.S. and want to adjust your status to that of a Lawful Permanent Resident, there are a couple of grounds upon which to do this under the Immediate Relative provisions of the CSPA.

If you are under 21 years old when a petition is filed for you by your U.S. Citizen parent, you will be considered to have not ‘aged-out’ even if your status is not adjudicated until after you are 21 years old. The critical factor will be when the initial I-130 is filed. It is how old you are on the date the I-130 is filed that will determine if you remain a “child” for purposes of not ‘aging-out’.

Question: What if my parent was a Lawful Permanent Resident when the I-130 was filed, and later became a U.S. Citizen?

Answer: In that case, the critical date that will determine if you are a child who will not age-out will be the date your parent became a U.S. Citizen, not the date the I-130 was filed. For example, let us say that the I-130 was filed when you were 18, and your parent naturalized when you were 20 year old. In this example, even if the adjustment was not done until after you were 21 years old, you would be considered to remain at 20 years old and therefore, not to have aged-out when you turn 21 years old. It makes it critically important that your parent become a U.S. Citizen right way if they are eligible if you happen to be less than 21 years old.

Question: What if my parent is not eligible to become a Naturalized U.S. Citizen? Can I still avail of the CSPA?

Answer: In this case, the date that the Immigration and Naturalization Service will look at to determine if a person is a ‘child’ under the CSPA will not be when the I-130 is filed, nor when the parent would become a U.S. Citizen, but rather, when the priority date becomes current. It is critically important that if you fall under this category, that you make certain that you file for Adjustment of Status within ONE year of the priority date becoming current. Otherwise, you cannot fall under the provisions of the CSPA.

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