Consular Processing for Family-Based Immigration and Related Issues to the Child Status Protection Act (CSPA)
Attorney Jerry Zhang
I. Introduction
Consular Processing for immigrant visas refers to the procedure or process where an immigration applicant or beneficiary, after the approval of his or her immigration petition (such as an I-130 family-based immigration petition) and the availability of an immigrant visa, applies for an immigrant visa at a U.S. consulate abroad. This process is the last step for beneficiaries of family based immigration to get an immigrant visas through an oversea US consulate.
In family-based immigration, beneficiaries often face lengthy waiting periods and complex legal procedures, especially when minor children are involved. The extended processing time for immigration petitions and immigrant visa number availability may result in some children aging out (exceeding 21 years of age) and losing their eligibility to obtain a U.S. green card.
The Child Status Protection Act (CSPA) was enacted to address this issue. The Act aims to ensure that certain unmarried children who may age out during the immigration process can still qualify to obtain a green card. This article will delve into the consular processing for family-based immigration and explain how CSPA plays a role in this process, maximizing the protection of family unity.
II. Overview of Consular Processing for Family-Based Immigration
After a U.S. citizen or lawful permanent resident (green card holder) submits and obtains approval for an immigration petition (I-130) on behalf of an overseas relative (beneficiary), the beneficiary can apply for an immigrant visa application and interview at the U.S. consulate in his or her home country. Upon approval, the beneficiary will receive an immigrant visa to enter the United States. This process is known as consular processing for family-based immigration.
1. Steps in Family-Based Immigration and Consular Processing:
(1) Filing Form I-130: A U.S. citizen or green card holder must file an I-130 petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the beneficiary.
(2) Waiting for Visa Availability: After the I-130 is approved, the beneficiary must wait for a visa number to become available.
Whether the beneficiary can obtain a visa number depends on whether the priority date (the date USCIS received the I-130 petition) is earlier than the cutoff date listed in the Visa Bulletin under the Final Action Date Chart (Chart A).
If the priority date is earlier than the Final Action Date shown in the Visa Bulletin, the beneficiary is eligible for an immigrant visa. Conversely, if the priority date is equal to or later than the Final Action Date shown in the Visa Bulletin, the beneficiary does not have an immigrant visa available and must wait until his or her priority date is earlier than the Final Action Date shown in the Visa Bulletin.
Important: Sometimes, USCIS or the U.S. Department of State allows beneficiaries to use the Dates for Filing Chart (Chart B) to initiate consular processing with the National Visa Center (NVC), locking in a child’s age to determine whether he or she meet the CSPA age requirements.
Compared to Chart A, the dates on Chart B are usually later (i.e., closer to the present date), meaning a beneficiary can initiate consular processing earlier than the date when his or her immigrant visa number becomes available.
When calculating the CSPA age for a child, 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 approach provides greater flexibility and more opportunities for many families.
Note: Immediate relatives of U.S. citizens, such as spouses, parents, and unmarried children under 21, are not subject to any immigrant visa numerical limits. These beneficiaries can directly apply for consular processing after I-130 got approved by the USCIS.
(3) National Visa Center (NVC) Processing: When a visa number becomes available, the NVC will notify the beneficiary to pay the required fees (such as the immigrant visa processing fee) and submit the necessary documents (e.g., Form DS-260, birth certificate).
(4) Consular Interview: After document review, the beneficiary must attend an interview at the local U.S. consulate to verify family relationships and immigration eligibility.
(5) Visa Issuance and Entry: After the interview is approved, the beneficiary receives the immigrant visa and must enter the U.S. within six months to activate his or her permanent resident status.
2. Prior to CSPA, Key Challenge in Family-Based Immigration—Risk of Children Aging Out: Due to the lengthy processing times for family-based immigration applications (I-130), some children may age out (exceed 21 years of age) during the waiting period, losing their eligibility to obtain a green card.
III. The Child Status Protection Act (CSPA) and Its Applicability
The core objective of CSPA is to address a specific challenge: certain foreign nationals are initially classified as "children" during the immigration process, but due to prolonged processing times, they reach or exceed 21 years of age while waiting, thereby losing their eligibility to obtain a green card as "children."
Under Section 101(b)(1) of the Immigration and Nationality Act (INA), a "child" is defined as an unmarried person under 21 years of age. CSPA does not change this definition but provides a method to calculate a beneficiary’s "immigration age," known as the "CSPA age." This method aims to protect certain beneficiaries who may be aged out due to delays in immigration processing, allowing them to retain their eligibility to obtain a green card.
It is important to note that CSPA does not change the requirement that beneficiaries must remain unmarried. If a beneficiary marries during the waiting period, he or she will lose the eligibility to obtain a green card as a "child."
Per USCIS’s Policy Manual, CSPA applies to "both aliens abroad who are applying for an immigrant visa through the Department of State (DOS) and aliens physically present in the United States who are applying for adjustment of status through USCIS." Although Chapter 7 of the Policy Manual primarily focuses on the impact of CSPA on adjustment of status applicants, USCIS emphasizes that "the same principles generally apply to aliens seeking an immigrant visa through DOS." (https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7)
IV. Practical Application of CSPA in Consular Processing for Family-Based Immigration
CSPA Age Calculation for A Child: CSPA Age = Child’s Actual Age at the Time of Visa Availability - Pending Time of I-130 Petition
1. Pending Time of I-130 Petition: This refers to the number of days from the date the USCIS receives the I-130 petition to the date the petition is approved.
2. How to Determine When a Visa Number Becomes Available?
The U.S. Department of State’s Visa Bulletin provides two key charts: the aforementioned Chart A (Final Action Date Chart) and Chart B (Dates for Filing Chart). The dates on Chart B, if the USCIS or DOS decide to be open, indicate whether applicants can begin preparing and submitting documents to the National Visa Center (NVC), even if a visa number is not yet available for them under Chart A.
To freeze the child’s age and benefit from CSPA protection, the family must take one of the following actions when the child’s priority date is earlier than the date shown on Chart B:
Pay the Affidavit of Support fee
Pay the Immigrant Visa fee
Complete and submit Form DS-260 online
Submit a fully signed Affidavit of Support
File Form I-824 on behalf of the applicant (if applicable)
The purpose of taking any of these actions is to timely assist the child in obtaining lawful permanent resident status through their parent’s family-based immigration petition. If the family takes these actions when the child’s priority date is earlier than the date shown on Chart B, the child’s CSPA age will be frozen when the priority date is earlier than the Final Action Date.
Important: Applicants must complete subsequent steps (such as submitting Form DS-260 or paying the immigrant visa fee) within one year of the visa number becoming available, or they will lose CSPA protection.
For applicants, it is crucial to:
File the family-based immigration petition (I-130) as early as possible: Initiate the process before the unmarried child turns 21.
Monitor the progress of the priority date: Stay updated on visa availability and ensure subsequent steps are completed within the CSPA window.
Maintain complete evidence: Such as the I-130 approval notice, to support CSPA age calculations.
To maintain a protect under the CSPA, an eligible child must take an action by filing a DS-260 within one year after his / her immigrant visa number becomes available per Visa Bulletin Chart A or filing a DS-260 per Visa Bulletin Chart B if he or she is allowed to file a DS-260 and his / her CSPA age is less than 21 years old when he / she files DS-260.
CSPA reflects the U.S. immigration law’s humane consideration for family unity, but its complex legal details require professional guidance. Applicants facing the risk of aging out should consult an immigration attorney promptly to ensure their rights are protected.
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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(03/02/2025)