The CSPA extends benefits to children of U.S. citizens (USC) in the immediate relative category (minor children of a USC) under the following three specific scenarios:
- If a United States citizen (USC) files Form I-130, “Petition for an Alien Relative”, on behalf of his/her child before the child turns 21, the child will continue to be considered a child for immigration purposes even if the USCIS does not adjudicate the petition before the child turns 21.
In this situation, the child’s age will be determined on the date on which the Form I-130, Petition for an Alien Relative, is filed, as opposed to when the application is adjudicated for permanent residence.
A father is a U.S. citizen and petitions for his 20-year-old daughter. Formerly, if she aged-out, her petition would automatically convert to the family-based 1st preference category (unmarried adult sons and daughters of U.S. citizens). Under the CSPA, her age is fixed at 20 on the day that the form I-130 visa petition is submitted on her behalf even if she has turned 21 by the time her application for adjustment of status is adjudicated.
- If an alien was originally a Legal Permanent Resident (LPR) and filed an I-130 petition for his/her alien child, the age of the alien’s child is determined on the date of the alien parent’s naturalization.
The child was originally under the family-based second preference (2A) (minor children of permanent residents) category, but upon naturalization of the parent, the child’s case is converted to a petition for an immediate relative of a USC. The child’s eligibility for immediate relative status will be determined, based upon the date of the alien’s naturalization as a US citizen.
Bill filed Form I-130 for his 17 year old son when Bill was an LPR. Bill is naturalized as a U.S. citizen when his son is 20. His age will be fixed as of the date that his father naturalized. His son will remain eligible for a visa as an immediate relative of a USC, even if the son has attained the age of 22 on the date his adjustment of status is adjudicated.
- If a USC files a petition for their married son or daughter (3rd Preference for married sons and daughters of USC) and the son or daughter later divorces, the son or daughter’s eligibility for immigration will be determined based upon his or her age on the date of the divorce. If at that time he/she is under 21, he/she is considered an immediate relative of the USC. If he/she turns 21 before the divorce, he/she is under Family-based Immigration 1st Preference, and he/she will not be able to take advantage of the CSPA.
A USC filed Form I-130 for his married daughter under the Family-based Immigration, 3rd Preference category when she was 20. She divorced when she was 20 years and 10 months old. The petition on her behalf automatically is converted to the immediate relative of the USC. Her age is fixed as of the date of the termination of the marriage. However, if she divorces at 21 years and 1 month old, she is unable to take advantage of the CSPA. However, her case is upgraded to the Family-based Immigration 1st Preference category.