The CSPA also extends age-out protection to the children of aliens granted asylee status and aliens granted refugee status.
The CSPA provides that an unmarried alien who seeks to accompany or follow to join a parent granted asylum, and who was under 21 years of age on the date the parent applied for asylum but turned 21 when the asylum application was pending, will continue to be classified as a child for purposes of derivative asylum benefits. The filing date is defined by USCIS regulations as the date that an application was received.
There are two ways for a child to obtain derivative asylee status. First, when a child is present in the United States, the parent may include the child on the asylum application. In these circumstances, the CSPA will apply if 1) the child was under 21 when the asylum application was filed; and 2) the parent adds the child’s name to the asylum application before it is adjudicated. For example, the CSPA will apply if an asylum applicant adds a 22 year old child who is present in the United States to a pending asylum application, provided the child was under 21 when the asylum application was filed.
Second, if a child is not present in the United States or was not named in the asylum application, the parent may still claim the child as a derivative by filing a Form I-730, Refugee/Asylee Relative Petition, within two years of being granted asylum. Although the USCIS has not yet addressed this situation, the Executive Office for Immigration Review (EOIR) has provided insight into how the CSPA may be applied to these cases. In a memorandum on conditional grants of asylum due to coercive population control policies, EOIR explained that the CSPA will apply if:
- The child was under 21 at the time the asylum application was filed; and
- The parent is granted asylum on or after August 6, 2002, provided the parent follows all of the regulatory requirements for filing the I-730; or
- The parent is granted asylum prior to August 6, 2002 and the child turns 21 prior to August 6, 2002, but only if the I-730 was filed prior to August 6, 2002 and remained pending on that date.
The CSPA extends this same protection to the children of aliens granted refugee status.