Employment-Based I-485 Application and Child Status Protection Act (CSPA)
Attorney Jerry Zhang
I. Introduction
Employment-based immigration is a crucial pathway for the United States to attract global talent, and the I-485 application (Adjustment of Status) is a key step for employment-based immigration applicants to transition from non-immigrant status to permanent resident status within the U.S. During this process, many families with children face a common issue: the child’s age may exceed 21 due to the lengthy processing time of the immigration application, thereby losing the eligibility to immigrate with their parents. To address this issue, the U.S. Congress passed the Child Status Protection Act (CSPA) in 2002, aiming to ensure that some children who may age out during the immigration process can still qualify to obtain lawful permanent resident status with their parents.
II. 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 a 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 derivative beneficiaries of an employment based green card application. However, due to prolonged processing time, many children turned 21 years old or older during the waiting period for I-140 and I-485 cases, 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 of I-140 petitions and I-485 applications. 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.
III. Employment-Based I-485 Application
The I-485 application is a critical step for applicants who are in the US to adjust their status within the U.S. Once theirI-485 application is approved, applicants transit from non-immigrant status (such as H-1B, L-1, etc.) to permanent resident status (Legal Permanent Residents or Green Card holders).
The main categories of employment-based immigration include:
After the employment-based immigration application is approved, if the immigrant visa number becomes available for the beneficiary, he or she, along with his or her spouse and unmarried children under 21 (as derivative applicants), can submit an I-485 application within the U.S. to adjust their status and obtain permanent resident status (green card) if they are in the US. The processing time for employment-based immigration and adjustment of status are often lengthy, and many applicants may face extended waiting periods. Moreover, there are visa backlogs for many beneficiaries of employment based immigration petitions. For example, EB-2 and EB-3 applicants or beneficiaries born in mainland China or India often need to wait several years before they can submit their I-485 applications.
During this process, a child’s age may exceed 21 due to the long waiting period, causing him or her to lose eligibility to become a legal permanent resident with his or her parent. To address this issue, the Child Status Protection Act (CSPA) was introduced. CSPA ensures that some children do not age out due to processing delays by freezing their age, providing crucial protection for some children in employment-based immigration petitions, and allowing them to obtain a green card along with their parents.
IV. Practical Application of CSPA in Employment-Based Immigration
In employment-based immigration, the practical application of CSPA involves the following key aspects:
1. Calculation of CSPA Age for Children
CSPA Age = Child’s Actual Age at the Time of Visa Availability - Pending Time of I-140 Application
Notes:
1) Pending Time of the I-140 application refers to the number of days from the date the USCIS receives the I-140 application and the date the application is approved.
2) Visa Availability: Whether an applicant can obtain a visa depends on whether his priority date is earlier than the cutoff date listed in the Visa Bulletin Final Action Date Chart (Chart A).
If the priority date is earlier than the Final Action Date shown in the Visa Bulletin, the applicant is eligible for an immigrant visa. Conversely, if the priority date is equal or later than the Final Action Date shown in the Visa Bulletin, the applicant does not have an immigrant visa available and must wait until his priority date is earlier than the Final Action Date shown in the Visa Bulletin.
Important: Sometimes, USCIS allows applicants the Dates for Filing Chart (Chart B) to file an Adjustment of Status.
On February 14, 2023, USCIS announced a new policy (https://www.uscis.gov/newsroom/alerts/uscis-updates-child-status-protection-act-cspa-age-calculation-for-certain-adjustment-of-status), stating that it will use Chart B to determine eligibility for filing I-485 and lock in the child’s age to calculate whether they meet the CSPA age requirements.
Prior to this, USCIS only used the Final Action Date Chart (Chart A) in the Visa Bulletin to calculate CSPA age. This meant that CSPA age could only be calculated when the "final action date" for the visa became available.
The dates on Chart A reflect when USCIS can actually adjudicate the case and approve an I-485, while Chart B indicates when applicants can submit their adjustment of status applications (I-485). Compared to Chart A, the dates on Chart B are usually later (i.e., closer to the present date), meaning applicants can submit their I-485 applications earlier than their immigrant visa number available dates.
When calculating the CSPA age for children, using Chart B reduces the waiting time for visa availability (compared to Chart A), allowing more children to lock in their age before turning 21 and benefit from CSPA protection. This new policy provides greater flexibility and more opportunities for many families.
3) Priority Date: This is the date the Department of Labor (DOL) receives the PERM labor certification application or the date USCIS receives the I-140 application (if no labor certification is required).
Example:
Olivia’s actual age in January 2024: 21 years and 1 month.
CSPA Age = Actual Age - I-140 Pending Time = 21 years 1 month - 1 year = 20 years 1 month.
Important: To benefit from CSPA protection, the child must submit the I-485 application within one year of his / her immigrant visa number becoming current. If the application is not submitted within this period, the child will lose CSPA protection.
CSPA provides crucial legal protection for children in employment-based immigration applications, but its application involves complex legal rules and time constraints. People should take timely action under the guidance of an experienced immigration attorney to avoid or mitigate the risk of children aging out.
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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(02/25/2025)