Issues of Family-Based I-485 Application and Child Status Protection Act (CSPA)
Attorney Jerry Zhang (02/21/ 2025)
In the process of applying for a family-based U.S. green card, the aging-out issue of children has long been a concern for many families. To address this problem, the U.S. government enacted the “Child Status Protection Act (CSPA)”. This article provides a detailed explanation of the practical application of CSPA in Family based Adjustment of Status (I-485) applications, helping immigrant families better understand and utilize this legal provision.
I. Overview and Background of CSPA
Prior to the implementation of CSPA, the requirement was that if a child’s age had not reached or exceeded 21 years old on the day when USCIS adjudicated the I-485 application, the child is not considered aged out and his or her I-485 may get approved. If the child reached or exceeded 21 years old on the date that USCIS adjudicated the I-485 application, he or she would be deemed aged out and ineligible for an I-485 approval.
U.S. immigration law originally allowed unmarried children under 21 years old to qualify as primary or derivative beneficiaries of a green card application. However, due to prolonged processing time. for immigration petitions and/or adjustment of status (particularly I-130 and/or I-485), many children turned 21 years old or older during the waiting period, losing their eligibility for a green card.
On August 6, 2002, President George W. Bush signed CSPA into law to mitigate this issue. CSPA aims to preserve the minor status of foreign children who might otherwise age out due to lengthy USCIS processing delays. This law ensures that certain unmarried children under 21 years old can retain eligibility to adjust status or obtain an immigrant visa, protecting them from the risk of aging out.
II. Practical Application of CSPA in Family-Based I-485 Applications
In family-based Adjustment of Status cases (I-485), CSPA serves as a critical age-protection mechanism for children at risk of aging out. Many eligible minor children reach or exceed age 21 while awaiting approval of their family-based immigration petitions and/or adjustment of status (I-130 and/or I-485) . Under CSPA, however, some children who reach or exceed 21 years old may still be considered minors, retaining their eligibility to adjust status or obtain an immigrant visa. Below are key scenarios illustrating CSPA’s application in I-485 cases:
1. U.S. Citizens Applying for Green Cards for Unmarried Minor Children:
When a U.S. citizen’s child is in the U.S., under 21 years old, and unmarried, the citizen may file an I-130 petition for the child. The child may concurrently file an adjustment of status application (I-485). There is no visa number limitation for US citizen’s unmarried children of under 21 years old. The child’s age is locked at the time of filing I-130 and I-485, eliminating aging-out concerns.
2. Green Card Holders Applying for Green Cards for Unmarried Minor Children:
Unmarried minor children of green card holders need to wait for the availability of immigration visa number before filing an I-485 form under F2A category. When applying for unmarried minor children. The child’s CSPA age is calculated as follows: CSPA Age = Age when visa number becomes available – I-130 processing time. If his / her CSPA age is under 21 years old, the child meets CSPA requirements. However, he / she needs to apply for an I-485 within one year of visa number becoming available to retain CSPA protection.
3. CSPA and F-4 Derivative Beneficiary Applications:
When a U.S. citizen applies for an immigration petition (I-130) under F4 (for siblings), the sibling’s unmarried minor children may qualify as derivative beneficiaries.
To receive CSPA protection:
- The child must be under 21 and unmarried when the I-130 is filed.
- Upon visa numbers become available, the child’s CSPA age is calculated. If the child’s CSPA age is under 21 years old, the child needs to file I-485 within one year of visa availability to retain CSPA protection. .
III. CSPA Age Calculation Method
The CSPA formula is:
CSPA Age = Age on his / her Immigrant Visa Number Available Date –Immigration Petition (I-130) Processing Time
Example:
Mr. Liu’s father (a green card holder) filed an I-130 for him on March 1, 2022 (priority date), approved on September 1, 2023. Mr. Liu was born on June 1, 2002.
Assuming his Visa Number Available Date isJanuary 1, 2024 per Visa Bulletin Chart A.
His I-130 Processing Time: September 1, 2023 – March 1, 2022 = 1 year, 6 months.
His CSPA Age = his Age on January 1, 2024 (21 years, 7 months) - I-130 processing time (1 year, 6 months) = 20 years, 1 month.
Since Mr. Liu’s CSPA age is under 21 years old and he remains unmarried, He meets the CSPA age requirement for applying for a green card. If he is in the U.S., he needs to file I-485 within one year of his visa availability.
IV. Key Considerations
1. Unmarried Status Requirement:
The child must remain unmarried until his / her I-485 gets approved. If a child gets married during this period, even if the CSPA age is under 21 years old, child will lose the eligibility to obtain a green card due to not meeting the requirement of unmarried children in CSPA.
2. Aged-Out Applications:
If an I-485 for child is denied due to aging out, but the CSPA age on the available dates of the immigration visa availability is under 21 years old, the applicant may file an I-290B (Notice of Appeal or Motion) to reopen the case within 30 days.
3. Visa Bulletin Chart A vs. Chart B:
As of February 14, 2023, USCIS permits applicants to use Chart B in visa bulletin (Dates for Filing) to lock in a child’s age if USCIS opens Table B is open. ( https://www.uscis.gov/newsroom/alerts/uscis-updates-child-status-protection-act-cspa-age-calculation-for-certain-adjustment-of-status)
V. Conclusion
CSPA provides vital protections for immigrant families, ensuring some children do not lose immigration opportunities due to age. However, the complexity of CSPA calculations demands careful attention to detail. Families are strongly advised to consult an experienced immigration attorney to navigate CSPA’s provisions effectively and ensure compliance with I-485 requirements.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, P.C.
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(02/21/2025)