The CSPA also covers the children of Legal Permanent Residents (LPR), and the children of the aliens who are in the process of filing immigration petitions. Two scenarios apply:
- Children who have been directly sponsored by their LPR parents under the Family-based Immigration 2A category; and
- Children who are accompanying or joining family-sponsored, employment-based, and diversity immigrant parents.
Determination of the Age of the Alien Child
In accordance with the CSPA, the age of the alien child is determined on the date on which an immigrant visa number becomes available, minus the number of days the petition was pending with the USCIS (formerly INS).
Immigrant Visa Availability
Immigrant visa availability requires both a current priority date and an approved immigration petition. The Department of State publishes a Visa Bulletin every month that lists the current priority dates that are applicable on the first day of every month. Therefore, the alien child’s age should be determined on the first date of the month that the priority date becomes current.
“Pending” refers to the status of a case during the period of time starting when the I-130 or I-140 petition is filed with the USCIS until it is approved.
Therefore, the formula for calculating the age of the alien child involves two dates: the first is the age of the alien child on the date on which an immigration visa becomes available (1); the second, is the number of days the immigration petition is pending with the USCIS (2).
The age of the alien child under the CSPA = (1) – (2)
Kyle is an LPR. He filed an immigration petition for his son, Josh, an alien child, when Josh was 18 years old. This petition was approved after it was pending with the USCIS for exactly 1 year (2). When the immigrant visa number became available for Josh, he was 21 years, 11 months old (1). Thus, Josh’s age for immigration purposes under the CSPA is determined by age (1) minus pending time (2). 21 years 11 months – 1 year = 20 years 11 months. Sam’s age is locked at 20 years 11 months old. Sam is still regarded as a “child” under the CSPA.
David files an I-140 petition under the EB-1(A) “alien of extraordinary ability” category when his daughter Meghan is 20 years, 11 months old. The case is approved after 6 months, and at that time, Meghan is 21 years and 5 months old. Immigrant visa numbers are available at the time David’s immigration petition is approved. Meghan’s age at the time is reduced by 6 months, which equals 20 years 11 months. As a derivative beneficiary of David’s immigration petition, Meghan’s age is locked at 20 years, 11 months.
Acquiring Permanent Residency
This provision applies only if the alien child has applied to acquire permanent residence within one year after the visa number becomes available.
Thus, in the above example, in order to take advantage of the CSPA Mary has to apply for adjustment of status (if she is in the U.S.), or apply for an immigrant visa (if she is abroad), within one year of the visa number becoming available.