On September 25, 2024, the United States Citizenship and Immigration Services (USCIS) published new guidance regarding the Child Status Protection Act (CSPA). For immigration purposes, a child is an unmarried individual who is under 21 years old. A person who is older than 21 years loses eligibility to gain a green card as a child, also known as “aging out”. By meeting certain requirements, an individual may use the provisions contained in CSPA to “freeze” their age and prevent aging out.
To take advantage of CSPA the individual must “seek to acquire” the desired status within one year of visa availability. [1] Immigrant visa availability is determined based on the priority date of the immigrant visa and the relevant section of the visa bulletin. [2] If the immigrant visa is not yet approved, the individual’s CSPA age will be based on the later date. [3]
If the individual has met the above requirement, the second requirement is that the individual’s “CSPA age” must be below 21 years at the time of visa availability. To calculate an individual’s CSPA age, take the individual’s actual age on the date that a visa becomes available (the first day of the first month that the green card is eligible for filing). From this figure, subtract the number of days that the immigrant visa (for example, I-140) was pending with USCIS. The result is the CSPA age. [4] If the age is below 21 years old, the individual may still be considered a child for green card purposes. If not, the individual may not be considered a child. For primary beneficiaries whose children were born abroad, it can be advantageous to file the immigrant visa petition in normal processing, as opposed to premium processing, to ensure that the immigrant visa is pending for as long as possible. Since the definition of a child is that the person is unmarried, children for these purposes must be unmarried, even if they are older than 21 years old and relying on CSPA to remain “under” 21 years old. [5]
The most recent update issued by USCIS clarifies that individuals presented with “extraordinary circumstances” may be exempt from the one year “sought to acquire” requirement if they can demonstrate that those circumstances prevented them from seeking to acquire status within one year. [6] Extraordinary circumstances are defined as “not created through the noncitizen’s own actions or inactions”, “the circumstances directly affected the applicant’s failure to seek to acquire LPR status within the 1-year period; and the delay was reasonable under the circumstances”. [7] Colloquially, the individual’s circumstances must have been outside of their control and made it impossible to seek to acquire status within one year. Additionally, after the circumstances have subsided, the individual must then make every reasonable effort to seek to acquire status. This is discretionary on the part of the officer. Not all unfortunate circumstances are considered “extraordinary”. If extraordinary circumstances are shown and the officer agrees, “USCIS calculates their CSPA age using the date when the visa became available”, regardless of whether they sought to acquire within one year. [8] If the date listed on the visa bulletin retrogresses, or moves backwards, and the individual demonstrates that the same circumstances prevented them from seeking to acquire status in time, the CSPA age will be calculated based on the original date of availability. [9]
For more information, please see the USCIS press release.
Written by Ciara Melville
[1] 20240925-CSPAAgeCalculation.pdf (uscis.gov)
[2] Chapter 7 – Child Status Protection Act | USCIS
[3] id
[4] Chapter 7 – Child Status Protection Act | USCIS
[5] Child Status Protection Act (CSPA) | USCIS
[6] https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20240925-CSPAAgeCalculation.pdf
[7] 20240925-CSPAAgeCalculation.pdf (uscis.gov)
